author: George Rose Smith, J. Ed. F. McFaddin, Associate Justice

text:
    Moore et al. v. State.
    4862
    299 S. W. 2d 838
    Opinion delivered March 18, 1957.

      W. Harold Flowers, for appellant.

      Tom Gentry, Atty. General; Paul G. Bowlings, Asst. Atty. General, for appellee.
   George Rose Smith, J.

The four appellants, Moore, Boyd, Boone, and Byrd, were convicted of murder in the first degree, committed in the perpetration of robbery, and were sentenced to death. A number of grounds are urged for a reversal of the judgment.

It is first contended that the court should have granted a change of venue. The petition for a transfer of the case did not comply with the statute, in that it was not supported by the affidavits of two credible persons not related to the defendants. Ark. Stats. 1947, § 43-1502. Nor was there any sworn testimony (except the affidavits of the defendants themselves) to show that the minds of the inhabitants of the county were so prejudiced that a fair trial could not be had. Ibid., § 43-1501. The defense offered only the unsworn statements of the four attorneys who were appointed to defend the case. These gentlemen said in substance that they had unsuccessfully attempted to find and employ some one to make a survey of the public feeling in the county. It was their opinion — and this was at least in part a conclusion — that their failure to find some one qualified and willing to make the survey was due to the existence of local prejudice. Newspaper reports of the crime were also introduced in support of the petition, but we do not share counsel’s opinion that these reports were biased.

In the absence of competent evidence to establish the existence of prejudice the court did not abuse its discretion in denying a change of venue. Appellants rely solely upon the decision in Hildreth v. State, 214 Ark. 710, 217 S. W. 2d 622, but that case is quite unlike this one. There the attorneys submitted a sworn statement, and offered to testify, that they had questioned numerous residents of the county and all thought the accused could not obtain a fair trial, that members of the jury panel had stated they could not try the accused fairly, and that public feeling was so antagonistic that the statutory affidavits could not be had. In the Hildreth case the judge refused to hear the proffered testimony and denied the petition on the basis of his personal belief that a fair trial could be had. In reversing that action we did not say that a change of venue should have been granted; we merely held that the court erred in refusing to hear the testimony. That decision does not require a trial court to order a change of venue in the absence of any testimony that the statutory ground therefor exists.

A second contention is that the defendants’ confessions were admitted in evidence without other proof that the offense charged had been committed. Ark. Stats., § 43-2115. According to the confessions, the four appellants were riding together in a truck on the morning of May 9, 1956. They picked up the decedent, M. R. Plamm, who was on the highway soliciting a ride to his home a short distance away. Instead of driving Hamm to his home the defendants took him to a lonely spot farther down the lane on which Hamm lived. There the four men beat the decedent with their fists and with a club, knocking him down several times. They took from him a coin purse and a larger purse, together containing $10.11. After dividing the money the defendants drove away rapidly, leaving Hamm lying by the roadside.

Apart from the confessions there is ample evidence to show that the offense was committed. Testimony independent of the confessions indicates that Hamm left his home on the morning of May 9 to go into Texarkana for the purpose of paying a bill and buying medicine. Pie was last seen several hours later on his way home. Hamm was missing until May 14, when two of the appellants, Boyd and Boone, were questioned in connection with another robbery and admitted the attack upon Hamm. These two showed the officers where the assault had taken place, and Hamm’s purse was found by the road there. His body, badly decomposed, was discovered under some brush about two tenths of a mile away. Later on the other two appellants were arrested and also led the officers to the scene of the attack. In view of the fact that Hamm was missing for five days, that his body was found far from the route he would normally have followed in returning home, and that his purse had been taken, the jury would have been warranted in concluding from this evidence alone that Hamm had been robbed and had not died from natural causes. Ezell v. State, 217 Ark. 94, 229 S. W. 2d 32, and cases there cited.

The most serious question in the case is whether the court erred in permitting the State to prove that two of the defendants, Boone and Boyd, assaulted and robbed another man, T. B. Fenwick, five days after the attack upon Hamm. Although the two crimes were somewhat similar, in that both victims were picked up while hitchhiking, the record establishes no connection between the two offenses. In charging the jury with reference to the proof of the Fenwick robbery the court gave an instruction similar to that set out in Scrape v. State, 189 Ark. 221, 71 S. W. 2d 460, by which the jury were told that the Fenwick incident “might be considered by you as showing, if it does show, a scheme and a design on the part of these two defendants in the' commission of crime, and for no other purpose.”

That a defendant cannot be convicted of one crime by proof that he committed another is a fundamental principle of fairness conceded by every one. Judge Hemingway ably summarized the rule in Billings v. State, 52 Ark. 303, 12 S. W. 574: “The general rule is well established, in civil as well as in criminal cases, that evidence shall be confined to the issue. It seems that the necessity for the enforcement of the rule is stronger in criminal cases. The facts laid before the jury should consist exclusively of the transaction that forms the subject of the indictment, and matters relating thereto. To enlarge the scope of the investigation beyond this would subject the defendant to the dangers of surprise against which no foresight might prepare and no innocence defend. Under this rule it is generally improper to introduce evidence of other offenses; hut if facts bear upon the offense charged, they may be proven, although they disclose some other offense. The test of admissibility is the connection of the facts offered, with the subject charged.”

There are, of course, innumerable situations in which proof of other conduct on the part of the accused is relevant to the offense charged and is therefore perfectly competent, even though it also shows the commission of another crime. Many such situations were discussed in Alford v. State, 223 Ark. 330, 266 S. W. 2d 804, and need not again be reviewed. The question here is whether evidence of the Fenwick robbery was admissible to show a scheme and design on the part of Boone and Boyd in the commission of crime.

Our many cases admitting evidence to prove design fall naturally into two classes, corresponding to the two senses in which the word design is commonly used. First, design may simply indicate intent or conscious knowledge, as when one says that a thing was done by design rather than by accident or mistake. This usage is common in cases involving conduct which may be either innocent or criminal, depending upon the accused’s guilty knowledge or intent. A typical instance is Johnson v. State, 75 Ark. 427, 88 S. W. 905, which involved a charge of larceny growing out of an elaborate confidence game. In holding that proof of similar conduct was admissible to show design (in the sense of intent), we said: ‘ ‘ The general rule, of course, is that one crime cannot be proved as tending to prove another; but when the question of intention in the performance of acts becomes material, then similar acts which tend to show whether an innocent or criminal intent is present become admissible. This is frequent in cases of uttering forged instruments, passing counterfeit coins, receiving stolen property, and is applied in larceny as well as other crimes. 1 Wigmore, Evidence, § 346. The question was recently considered in this court, and this rule announced: ‘When there is a question as to whether or not the crime charged was by accident or mistake, or intentional and with had motive, the fact that such act was one of a series of similar acts committed by the defendant is admissible, because it tends to prove system and show design.’ Howard v. State, 72 Ark. 586 (82 S. W. 203).” Among other cases using the word design to mean intent or guilty knowledge are Ross v. State, 92 Ark. 481, 123 S. W. 756, and Norris v. State, 170 Ark. 484, 280 S. W. 398.

It is quite apparent that cases such as these do not support the State’s position in the case at bar. The only evidence that connects these appellants with Hamm’s death arises from their admissions and confessions. That proof, which must have been accepted by the jury, shows that these men beat their victim for the avowed purpose of robbing him. The question is not that of the intent with which Hamm was attacked. Rather, it is whether the attack took place at all; if it did, it was unquestionably done with criminal intent and constituted robbery. True, the appellants insisted in their confessions that they did not intend to kill Hamm, but that issue was eliminated by an instruction to the effect that a specific intent to take life is not necessary if the life is unlawfully taken in the perpetration of robbery.

In its other sense the word design means a plan of action formed in the mind and to be carried out in the future. Proof of design in this sense is undoubtedly competent, for the fact that a crime was planned in advance tends to show that it was actually committed. “The presence of a design or plan to do or not to do a given act has probative value to show that the act was in fact done or not done. A plan is not always carried out, but it is more or less likely to be carried out. ’ ’ Wigmore on Evidence, (3d Ed.), § 102; see also § 300. We have approved this principle on many occasions. For example, in a prosecution for murder in the perpetration of robbery it was proper for the State to prove that three robberies were planned in advance, although only one was attempted. Ford v. State, 34 Ark. 649. Again, in a prosecution for receiving stolen cattle the State could prove that the accused was engaged in that business and had. offered to pay a witness $8 a head for any cattle that he might steal and deliver to the accused. Long v. State, 192 Ark. 1089, 97 S. W. 2d 67. Other cases in point include Nichols v. State, 153 Ark. 467, 240 S. W. 716; Middleton v. State, 162 Ark. 530, 258 S. W. 995; cf. Jenkins v. State, 191 Ark. 625, 87 S. W. 2d 78.

It is likewise apparent that the proof of the Fenwick robbery does not come within the scope of this second aspect of design. The Fenwick incident occurred five days after Hamm was killed; it has no tendency to show that the robbery of Hamm was planned in advance. There is actually no evidence of an independent plan, formed ahead, for the attack upon either victim.

It is plain enough that the robbery of Fenwick was not competent to show design either in the sense of criminal intent or in the sense of a premeditated scheme. If the jury could not draw either of those permissible inferences from proof of the subsequent crime, of what value was the testimony to them? The only possible answer is that this proof established the fact that Boone and Boyd were criminals and were therefore likely to be guilty of the offense for which they were being tried. In short, the jury were afforded the opportunity of finding Boone and Boyd guilty of murder upon the basis of proof that they had committed robbery on another occasion.

We have in our reports more than a hundred decisions on this general subject. It may be conceded, as we indicated in the Alford case, supra, that these cases cannot all be harmonized with the principles stated there and here, or, indeed, with one another. The subject is one in which confusion is especially apt to arise. As we have seen, when the offense involves conduct that may be innocent or guilty, depending upon intent, it is proper for the State to offer evidence of similar conduct on the part of the accused in order to establish the necessary intent. But once the statement has been made that evidence of other offenses is admissible to show intent, the rule may be inadvertently applied in situations to which it is really not applicable.

Perhaps the most conspicuous departure from the general rule occurred in Scrape v. State, supra. There, in a prosecution for the robbery of a filling station, the State was allowed to prove an attempted robbery of another filling station on the following night. "We held the evidence admissible, citing Wilson v. State, 184 Ark. 119, 41 S. W. 2d 764, and Sibeck v. State, 186 Ark. 194, 53 S. W. 2d 5. It is at once apparent that neither decision supports the principal case, for both the Wilson case and the Sibeck case involved conduct that might have been innocent or criminal, according to intent. Thus a sound rule of law was lifted from its context and by oversight applied to a different fact situation.

It is easy to demonstrate that isolated cases such as the Scrape decision are out of harmony with the great majority of our opinions on the subject. A few examples will suffice. In Wood v. State, 157 Ark. 503, 248 S. W. 568, we held that evidence of a prior charge of robbery was inadmissible in a later prosecution for robbery. This language was quoted with approval by Judge Prank Smith: £ On the trial of one indicted for robbery, as in the case of other criminal prosecutions, the general rule is that evidence is not admissible which shows, or tends to show, that the accused has committed a crime wholly independent of the offense for which he is on trial. Under this rule, therefore, evidence of another separate and distinct robbery, committed the preceding night, by the defendant upon another person, in the same neighborhood, in much the same way, is not admissible in evidence against one who is being tried for robbing a pedestrian on the street in a city by pointing a pistol at him.” It will be observed how precisely this language fits the case at bar.

That two unconnected offenses do not themselves establish a scheme or design was unequivocally decided in Yelvington v. State, 169 Ark. 359, 275 S. W. 701. There the accused was charged with the theft of mules. We reversed the judgment because the State had been allowed to prove that when the stolen animals were found in the accused’s possession he also had in his possession some stolen sets of harness. Chief Justice Mc-Culloch analyzed the issue in detail: “We are of the opinion that it was error to admit the testimony of other thefts and appellant’s possession of the other property which had been stolen. This court has adopted a very liberal rule in declaring exceptions to the general rule against proof of other crimes. We have said that proof of other crimes of a similar nature, shown to have been committed about the same time, may be admitted as disclosing the good faith or criminal intent of the accused, or to prove a scheme or plan or system of committing crime, or to show a connection between that particular crime and the one under investigation. (Citing seven cases.) The proof in the present case does not, however, fall within the exception. The proof of the theft of the harness had no connection with the alleged theft of the mules. It occurred at a different time and place, and under those circumstances it had no tendency to establish a plan or scheme which included the theft of the stock, and formed no connection with that incident. The court admitted the testimony on the theory that it tended to establish the good or bad faith of the accused, but we do not think that it was proper for that purpose. The assignment falls squarely within the decision of this coui't in the recent case of Mays v. State, 163 Ark. 232 [259 S. W. 398]. In that case the defendant was convicted of the offense of receiving stolen property, and the State proved the theft of a valise containing woman’s apparel, that two of the dresses were found in the possession of appellant, and that other stolen property had also been found in his possession. We held that the testimony was incompetent, and the same reasoning calls for the exclusion in the present case of testimony relating to other thefts. The fact that the stolen harness was found in appellant’s possession at the same time that the mules were found there does not relieve the testimony of the objection that it relates to another crime.”

The charge in Williams v. State, 183 Ark. 870, 39 S. W. 2d 295, as in the case before us, was murder committed in the perpetration of robbery. In holding that the admission of testimony concerning other offenses, including robbery, was prejudicial we said: “There is no connection between these various crimes and the hilling of McDermott, and the only, and the necessary, effect of this testimony was to show the desperate character of appellant as a confirmed criminal. There was no question as to the purpose for which appellant held up Chance, and that he robbed him, and that while still at the scene of the crime he hilled the officer who attempted to arrest him.”

There are many other holdings to the same effect. Recent thefts of saddles or bridles cannot be shown in a prosecution for the theft of horses. Dove v. State, 37 Ark. 261; Endaily v. State, 39 Ark. 278. Where the accused was charged with assault with intent to hill, after he had brohen into a woman’s room with a pistol, the State could not show two other occasions on which he had brohen into women’s rooms with a pistol. Morris v. State, 165 Ark. 452, 264 S. W. 970. A separate attempt to rape cannot be proved in a prosecution for rape. Alford v. State, supra. Evidence of the theft of other cars is inadmissible upon a charge of larceny of an automobile. Rhea v. State, 226 Ark. 664, 291 S. W. 2d 521. See also Davis v. State, 170 Ark. 602, 280 S. W. 636.

Thus we are firmly committed to the universally accepted rule that evidence of other offenses is inadmissible when it has no permissible relevancy to the crime at issue and can only serve the purpose of persuading the jury that since the accused has been guilty of similar offenses he is therefore lihely to be guilty of the crime charged. It follows that the introduction of proof concerning the Fenwich robbery constituted prejudicial error as to Boone and Boyd.

Whether the error was also prejudicial as to Moore and Byrd, who had no part in the later crime, is apparently a question of first impression in this state. In admitting proof of the Fenwich robbery the court instructed the jury that the testimony could not be considered as to Moore and Byrd. It is of course possible that the jury were able to obey the court’s admonition and were not adversely influenced as to Mooré and Byrd. On the other hand, the admission of the Fenwick proof was prejudicial as to Boone and Bóyd, and the fact that the jury found all four defendants guilty and imposed the same penalty in every case indicates that the prejudicial effect of the testimony may have carried over to the other two defendants.

In the particular circumstances of this case we think the error was prejudicial to all four defendants. It is quite possible that if the attack on Fenwick had been mentioned only casually in the course of this prolonged trial, its effect as to Moore and Byrd would have been overcome by the court’s admonition to the jury. That, however, is not the situation at all. The record discloses beyond question that the State undertook to, and did, prove the Fenwick robbery in every detail and beyond a reasonable doubt. Before it had even been shown how Hamm met his death Fenwick was called as a witness and described at length how Boone and Boyd beat him with a claw hammer and forcibly took his wrist watch and a wallet containing an 1891 silver dollar. Seven law enforcement officers testified about the investigation of Hamm’s death; all of them except a police photographer also testified about the Fenwick crime. The wrist watch had been found in Boone’s cap and was introduced in evidence. The silver dollar was traced, recovered, identified, and received in evidence. The officers described their search for the hammer and accounted for their failure to produce it as well. A substantial portion of the trial was devoted to the State’s meticulous proof of the later crime, and it was mentioned several times in the prosecution’s arguments to the jury. It is fair to say that the proof of the attack upon Fenwick was even more conclusive than the proof of that upon Hamm, for the latter involved circumstantial evidence while the former was proved by direct testimony.

“Where the effect of an erroneous instruction or ruling of the trial court might result in prejudice, the rule is that the judgment must be reversed on account of such ruling, unless it affirmatively appears that there was no prejudice.” Crosby v. State, 154 Ark. 20, 241 S. W. 380. We cannot conscientiously and sincerely say that the court’s admonition eliminated the possibility that prejudice to Moore and Byrd resulted from the voluminous testimony relating to the brutal attack upon Fenwick. All four of the defendants had acted in concert in beating and robbing Hamm. When it was shown that two of these men also beat and robbed Fenwick, it would be natural for the jury to conclude that the other two would have joined in the attack had they been present. When the matter is thus open to doubt we are not warranted in holding that the record affirmatively shows the absence of prejudice.

Reversed.

Mr. Justice Holt joins in the opinion except with respect to the trial court’s denial of a change of venue; on this point he agrees with the concurring opinion of Mr. Justice McFaddin. The Chief Justice and Mr. Justice Millweb would affirm the judgment.

Ed. F. McFaddin, Associate Justice

(concurring). I concur in the reversal of this case, but for reasons entirely different from those stated in the majority opinion: hence this separate concurrence.

I. Proof Of Acts Of A Similar Nature. The majority is reversing the judgment because of the admission of the testimony regarding the attack on Mr. Fen-wick; and the majority says that any admission of testimony regarding the Fenwick incident violates the holding of this Court in Alford v. State, 223 Ark. 330, 266 S. W. 2d 804. I dissented in the Alford case; and I maintain that the majority opinion in the present case does not answer the cases cited in my dissent in the Alford case. I think the Trial Court was correct in the case at bar in allowing the testimony regarding the Fenwick incident; and I would not reverse the judgment for that reason.

II. Change Of Venue. My vote to reverse the judgment in the case at bar is because of the failure of the Trial Court to grant a change of venue. I think the matter of change of venue falls within the purview of our holding in Hildreth v. State, 214 Ark. 710, 217 S. W. 2d 622.

The situation in the ease at bar needs to be stated in some detail regarding the motion for change of venue. When the defendants were unable to employ-counsel, the Court appointed four splendid lawyers of the Texarkana, Arkansas bar to represent the defendants, jointly and severally. These attorneys wmre Dennis K. Williams, Joe Rosenblum, Van Johnson and William H. Arnold III. Each of these attorneys served, as court-appointed counsel, without compensation of any kind, and exemplified the fine ethics of the legal profession in acting as officers of the court in such capacity. The Trial Court advised the four attorneys that they -would work together, but each -would take the responsibility for the individual interest of one particular defendant. The feeling against these four defendants was so high in Miller County that the defendants were kept in another county and the place of confinement was kept secret. The defendants were at one time confined in the jail in Hempstead County and at one time they were placed in the State Penitentiary for safekeeping. When the attorneys desired to consult with their clients, they were taken to the place where the defendants were confined, rather than having the defendants brought back to Miller County. All of this is reflected in the record.

The attorneys filed a petition for change of venue, which reads:

“Come the defendants, James E. Moore, James Boyd, Rogers Boone and Willie Henry Byrd, jointly and severally, and respectfully petition the Court for a change of venue and state:

“This petition for change of venue is made jointly and severally by each and all of us.

“We are Negroes and are charged with robbing and murdering M. E. Hamm, an aged white man. Almost immediately upon being arrested in Miller County, Arkansas on the 15th day of May, 1956, we were all taken to the Clark County Jail in Arkadelphia, Arkansas, where we remained several days, and thereafter we were transferred to the Arkansas State Penitentiary, where we remained several days, and thereafter we were transferred to the Hempstead County Jail at Hope, Arkansas, where we remained several days. We were advised by the officers we were taken to these places for safe keeping.

“When we were arraigned the first time, we were brought secretly by the Officers from the Hempstead County Jail at Hope, Arkansas, to the Miller County Jail at Texarkana, Arkansas. Attorneys were appointed for us and after brief consultation with one of the attorneys, we entered a plea of not guilty and were immediately taken back to the Hempstead County Jail at Hope, Arkansas; during the meantime, an amended information was filed against us and we were again secretly brought to Texarkana, Arkansas, and arraigned and quietly placed in the Miller County, Arkansas Jail, at Texarkana, Arkansas.

“Upon inquiry from the officers as to why we were taken away from Miller County, Arkansas, we were advised the feelings in the minds of the inhabitants of Miller County, Arkansas were so prejudiced against us that there was great danger of mob violence.

“The newspapers of Texarkana, Arkansas-Texas published that we had confessed to killing M. E. Hamm, when in truth and in fact, no such confession or statement was made by either or all of us; this erroneous publication caused the minds of the inhabitants of Miller County, Arkansas to become so prejudiced against each and all of us that we cannot receive a fair and impartial trial in said county.

“We and each of us believe that the minds of the inhabitants of Miller County, Arkansas are so prejudiced against us that each and all of us believe that a fair and impartial trial cannot be had in Miller County, Arkansas.

“Wherefore, James E. Moore, James Boyd, Rogers Boóne and Willie Henry Byrd, jointly and severally, pray the Court order removal of this criminal cause to some other county for trial.”

The petition for change of venue was not supported by the affidavits of witnesses, as required by law, for the admitted reason that the attorneys appointed by the Court stated that they were unable to obtain any persons to make a survey of Miller County so as to be prepared to testify in the trial. The attorneys published a notice in the Texarkana Gazette for three days, asking that anybody who wanted to obtain employment in making a survey would contact one of the attorneys. Any person answering the notice promptly refused when he found out what kind of work it was. The attorneys then contacted the Texarkana Employment Office, and again, were unable to obtain anyone who would do the work. Here is the statement that Mr. Dennis K. Williams, court-appointed counsel, made to the Court in regard to the petition for change of venue:

“My name is Dennis K. Williams, and I am one of the attorneys appointed to represent these defendants; and in the very early stages there, I suggested to the Court and also to the Prosecuting Attorney’s office that we were going to try to get a change of venue, and during that time, why, I tried to contact people, too, that Avould make a survey of the county to find out the feeling of the people, and I was able to get one party that said he would do it. And as late as last Thursday, why, that party said he had made a survey of the county and that all that he contacted said the “niggers” ought to be burned or hung; and that party was also to come to my office this past Saturday morning, and in no event late]- than Monday morning, and I have not even seen the gentleman. I saw him Friday up here at the Courthouse, but I have not seen him since.

“Another man that I contacted said he would give me his answer Thursday morning — this past Thursday morning — and lie met us up here at the Courthouse, and we four attorneys talked with him in the library, and told him what we would need and all, and that afternoon, why, he called me and said that he had talked with his wife, and his wife said he couldn’t have any part to do with it.

“As Mr. Johnson stated, some of these people, and my good friends, said they would not mind helping me, but this was a horse of a different color, and they refused to partake in it. And as a last resort, we thought we would advertise in the paper and I believe I can state kind of the sum and substance of the ad; I wanted credible persons to make a survey of Miller County on a controversial issue, and we didn’t even sign that; we gave Mr. Yan Johnson’s room number in the State National Bank, and as he has told you about the number of people that have called; and it was impossible for us to get people whom I think to be credible persons to make a survey of the county at this time, and I believe if public opinion subsides some in a few months, we might be able to get this. I know there has been diligence on the part of us attorneys. We have conferences on the average of sometimes one and two times a day. I mean conferences where we were all together, and telephone calls that have been made. Hardly a day goes by that I don’t call one of them or they don’t call me about this matter. We have just had difficulty; in fact, we have not been able so far to get anybody to make a survey of the county for us.”

This is not the ordinary case of paid counsel for a defendant making a statement as to inability to comply with the Statute. We have here the case of court-appointed counsel informing the Court that the sentiment in the County was of such a fever that people were unwilling to make a survey, even when offered employment. These four fine lawyers, officers of the Court, did everything they could to comply with the formalities of the Statute; and the change of venue should have been granted because the feeling in the County was so strong that the defendants had to be kept out of the County for safekeeping; and no person in the County was willing to come into the Court and testify as to the feelings of the populace of Miller County. It is putting form before substance to say that the petition for change of venue should have been refused because the legal formalities were not complied with.

I submit that the case of Hildreth v. State, 214 Ark. 710, 217 S. W. 2d 622, points the way to the necessity of a change of venue in the case at bar. In the Hildreth case, in speaking of the compliance with the Statute (§ 43-1502 regarding two electors), we said:

“The statute is evidently based on the premise that the accused is entitled to a change of venue when hostile public sentiment makes an impartial hearing impossible. It would be patently illogical to grant the petition when affidavits are obtainable, but to refuse relief when public feeling is so antagonistic that the affidavits cannot be had.”

In the case at bar the public sentiment, as shown by the court-appointed counsel, was so antagonistic that people refused, to make the affidavits or make the survey. Therefore, I submit that the change of venue should have been granted. It is for this reason alone that I vote to reverse the conviction.

Carretón Harris, Chief Justice (dissent). "While it forms no part of the reasons for this dissent, I should like to first express my disapproval of the law as established in the case of Alford v. State, 223 Ark. 330, 266 S. W. 2d 804. I consider that no better evidence can be presented to indicate one’s intentions in a particular instance, than to establish the same or similar acts upon other occasions evidencing the same intention. I think this particularly true in crimes involving sex, as the lust of the perpetrator of a sex crime is only temporarily satiated after the crime is consummated. The urge that prompted the dastardly act will come again and again, and will be acted upon under what is deemed to be proper conditions and circumstances.

However, I recognize that the rule announced in the Alford case is the established law in this state until overruled, and my dissent in the case at Bar is based upon the fact that I consider the evidence of the Fen-wick robbery to be admissible despite the rule in Alford v. State, supra. Quoting from the Alford case, which in turn quotes from an earlier case, State v. Dulaney, 87 Ark. 17, 112 S. W. 158; “Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; (5) the identity of the person charged with the commission of the crime on trial.”

The information in this case charged defendants with the crime of murder in the first degree, committed while perpetrating the crime of robbery. Under said information, it was necessary that the State prove that defendants robbed or attempted to rob the deceased. The most forceful evidence presented by the State was the confession of each of the defendants that they robbed Hamm. This, of course, standing alone and uncorroborated, was insufficient to establish that fact. It was therefore necessary that the State offer additional proof of the robbery. The evidence corroborating the robbery is thin indeed. Hamm’s empty pocketbook was found near the scene of the crime, and his wife testified that he left home for the purpose of going to town to pay the light bill and get some medicine, but she did not testify that he had any money in his pocketbook. There is practically no evidence in the record, with the exception of the confessions, that Hamm ivas rotted, or that the assault on him was made by the defendants in an attempt to rob him.

The testimony of Fenwick established that within a few days (five) of the death of Hamm, two of the defendants (Rogers Boone and James Boyd) pulled up ■where he was waiting for a bus, and said, “Let’s go to Hope.” He accordingly got in with them. ' “The biggest boy suggested that we stop for a nature case, and we all got out, and when we started to get back in, he reached and came out with a claw hammer and said ‘We ain’t going to Hope, but you’re going to Hell right quick’.” Fenwick stated that he was struck and hit with the claw hammer, and fell down. The two men then took his wrist watch and pocketbook. About that time, one of the defendants saw someone coming and started off, but the other said “Wait, I’ve got to kill this old son-of-a-bitch yet,” and kept hitting at him until his companion started driving away. Then he ran and caught the truck.

This evidence, in my opinion, was certainly admissible against these two defendants as being directly related to the issue of intent; in other words, it is “independently relevant” to the main issue — relevant in that it is evidence to prove a material point in the case at Bar, e. g., that defendants killed Hamm while committing or attempting to commit the crime of robbery. Of course, the evidence would not be admissible simply to show that they were evil men. In the Alford case, upon which the majority rely, the ravished witness was still alive, and present in Court testifying that she had been raped. Therefore, as set out in that opinion, there was no need of further evidence to show Alford’s intent, for no one would contend that he intended something other than rape. I would likewise agree that if Hamm were alive and testifying he had been robbed by the defendants, evidence of the Fenwick robbery would be inadmissible under the rule herein discussed. But, to the contrary, the victim is dead, and so cannot appear and testify as to what happened, and I repeat, there is no substantial evidence (other than confessions) to establish that the deceased was killed while the defendants were perpetrating the crime of robbery.

The information does not allege, nor is there any evidence in the record to establish that defendants had a grndge against deceased, or had previously planned to kill him, and the State’s first degree murder allegation must accordingly be sustained by proof of the robbery. The Court cautioned the jury that this evidence could only be used against the two defendants involved, and further, that it was only relevant as showing a general scheme or design. Such evidence has frequently been admitted for such a purpose. In Casteel v. State, 205 Ark. 82, 167 S. W. 2d 634, the defendant was tried for the crime of arson, it being alleged that he did “feloniously aid, abet, assist, and advise and encourage the burning of a * * * Pontiac automobile * * * property of Morris Henson, Bert Casteel and Porter Wilson Finance Company * * Among grounds for reversal, appellant urged that the trial court erred in permitting testimony relating to previous transactions of insurance on other automobiles in which appellant was interested, and which had been burned. Quoting from the Opinion: “Finally appellant urges that the trial court erred in permitting witnesses, J. O. Langley and Rellis Garrett, to testify as to transactions of insurance on other automobiles, and as to the alleged burning of these cars. The testimony is to the effect that this testimony concerned other automobiles, in which appellant was interested, which were insured and burned within a period of time shortly before the one in question here, and closely connected with its burning. This testimony, under proper instructions from the Court, was permitted to go to the jury solely for the purpose of determining appellant’s motive, scheme,- design or intent, and we think it was properly admitted. ’ ’

Again, in the case of Davis v. State, 182 Ark. 123, 30 S. W. 2d 830, Davis was convicted of the crime of murder, and sentenced to death. The evidence showed that he and two others went to the place of business of J. J. Weed, a merchant in North Little Rock, and while engaged in an attempt to rob Weed, killed him. A certain Joe Lee testified that on the same night, and within a few blocks of Weed’s place of business, he was held up by three men and robbed. He identified Davis as participating. This testimony was admitted over the objections of the defendant. The Court admonished the jury that the testimony could be considered only for the purpose of identification and upon the question of “* * * intent of entering Weed’s place of business * * Quoting from the late Justice Smith: “The indictment alleged that Weed was killed in an attempt to rob him, and it was this unlawful intent which made it unnecessary for the State to prove the deliberation and premeditation which would be required to establish murder in the first degree. # * * It ivas essential for the State to show that appellants were in Weed’s place of business for the purpose of committing the crime of robbery. * * *” (Emphasis supplied.) “The testimony was, therefore, competent to show the business in which appellants were engaged that night, and the probable purpose for which they went to Weed’s place of business thereafter.”

The fact that the offense admitted in evidence occurred subsequent to the crime for which appellants are being tried is of no effect. Scrape v. State, 189 Ark. 221, 71 S. W. 2d 460. This case, incidentally, seems to be on “all fours” with the case at Bar, and I find absolutely no distinction in the evidence that was admitted there of a similar offense, and the evidence which was herein admitted, and which the majority say constituted reversible error. Scrape was convicted of the crime of robbery of a filling station in Little Rock, which occurred on November 9, 1933. During the trial, and over objections, L. R. Biggs, operator of another filling station in Little Rock, was permitted to testify that appellant and two others had attempted to rob him on November 10, the day following the date of the robbery for which he was on trial. In this connection the Court gave to the jury, over appellant’s objections and exceptions, the following instruction: “The defendant is being tried alone for the crime of robbery. The State has attempted to show by testimony that this defendant engaged in an attempted crime of robbery on the night following the date of the crime for which he is now being tried is alleged to have been committed. If you should believe from the evidence that the defendant did attempt to commit robbery on the night following the alleged crime for which he is being tried, it might be considered by you as showing, if it does so show, a scheme and a design on the part of the defendant in the commission of crime, and for no other purpose; and, even though you should believe him guilty of attempted robbery committed on the day following the day of the robbery for which he is now being tried, yet that would not be sufficient to warrant his conviction on the charge for which he is now being tried unless you believe he was guilty on this particular charge beyond every reasonable doubt.” This instruction was approved by this Court, and in the language of Justice McHaney: “ * * * we have many times held that evidence of similar crimes closely connected with the crime charged, is admissible, not only to show knowledge or intent, but to show a system, plan, or scheme of conduct on the part of the accused. * * *”

The majority do not attempt to reconcile the present holding with the Scrape case other than to say that it was a ‘ conspicuous departure from the general rule ’ ’, an isolated case, and actually occurred because of “oversight”. Yet the majority do not overrule the Scrape decision.

It appears to me that the law relating to the admission of similar offenses in the trial of a particular cause, is now so highly technical and apparently conflicting, that lawyers and judges, in trying to distinguish between the various cases, can only reach a complete state of bewilderment. The net result will be that trial courts will never permit the introduction of evidence of similar crimes committed by a defendant which might well tend to prove intent, scheme, or design in the ease under submission. I strongly feel such evidence to be invaluable in the trial of a criminal case.

For the reasons herein set out, I am of the opinion that the testimony relating to the Fenwick robbery was competent and relevant evidence, and the Court did not err in admitting same. I accordingly respectfully dissent to the views of the majority.

Justice Millwee joins in the dissent.

       It was while the officers were questioning these two defendants about the Fenwick robbery that they learned of the robbery of Hamm, and were taken by Boone and Boyd to the location where Hamm had been beaten and left.

       When the defendants — or someone for them — employed present counsel to perfect this appeal, the Court released the court-appointed counsel.

       I emphatically disagree with the majority that the fact a man is missing for five days, his body found on a route not normally taken in going home, and his empty purse found on the side of the road two-tenths of a mile from the body, is such evidence, standing alone, as would warrant a jury in concluding that that individual had been robbed.


source: Caselaw Access Project

author: George Rose Smith, J.

license: Public Domain

text:
    Mo. Pac. Transportation Company v. Guthrie.
    5-1197
    299 S. W. 2d 829
    Opinion delivered March 18, 1957.

      Wiley Bean and Barber, Henry & Thurman, for appellant. .

      Thomas E. Downie; Lee $ Booth, Tulsa, Okla., for appellee.
   George Rose Smith, J.

This is a personal injury suit brought by Yesta Jewell Guthrie and her husband to recover for injuries sustained by Mrs. Guthrie as she was alighting from the appellant’s bus at Clarksville. It is asserted that the appellant’s driver was negligent in failing to assist Mrs. Guthrie, whose vision is seriously defective. The case was submitted to the jury under the comparative negligence statute. Ark. Stats. 1947, §§ •27-1742.1 and 27-1742.2. The jury found that half the total negligence was attributable to Mrs. Guthrie and half to the bus company and its driver. The verdicts were accordingly for the plaintiffs in half the amount of their respective total damages. For reversal it is contended that there is no substantial evidence to support the finding of negligence on the part of the bus company and its driver.

We think the conflicting evidence presented a question for the jury. Mrs. Guthrie testified that when she hoarded the bus at Fort Smith she told the driver that she was practically blind and would need help in getting off at Clarksville. It is conceded that in these circumstances the bus driver owed his passenger a duty of assistance. Payne v. Thurston, 148 Ark. 456, 230 S. W. 561. Mrs. Guthrie says that she sat in the first seat behind the driver. According to her, when the bus stopped at Clarksville the driver announced the station and immediately left the bus without offering to help her. She waited ‘ ‘ a few minutes, ’ ’ decided that the driver had forgotten her, and fell as she was attempting to alight by herself. The driver testified that upon stopping the bus at Clarksville he set the brakes, turned on the interior lights, and had just started down the steps of the bus when Mrs. Guthrie fell against him from behind. Which version of the accident is the true one was plainly an issue for the jury.

It is also contended that even if Mrs. Guthrie’s testimony is accepted the sole proximate cause of her injuries was her negligence in attempting to leave the bus without assistance. To sustain this contention would in effect revive the doctrine that contributory negligence in any degree is a complete bar to recovery. Here the evidence warranted the jury in finding that, although Mrs. Guthrie was herself guilty of negligence, the bus driver’s failure to render assistance was also a proximate cause of his passenger’s fall.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Bowen v. Hewitt.
    5-1200
    299 S. W. 2d 827
    Opinion delivered March 18, 1957.

      Tom Kiclcl, for appellant.

      Shaver, Tackett, Jones & Loive, for appellee.
   Paul Ward, Associate Justice.

Appellants, W. Bay Bowen and Elsie Bowen, and appellees, Jewell Hewitt and Boy Hewitt, own adjoining lands lying along the north side of the Little Missouri Biver, in Pike County, with appellants’ lands lying to the east of appellees’ lands. Prior to 1946 one Clyde Belt owned a portion of the lands now owned by appellants. Although it is not entirely clear from the record, it seems that the Belt tract of land adjoined appellants’ lands on the east prior to 1946 and that there was a public road running north and south along or across the east portion of the Belt land.

This litigation relates to the use of a road which runs from the Hewitt lands east across the Bowen and Belt lands to the aforementioned public road.

It is undisputed that the road in question was used by appellees and the public until 1952 when the road became somewhat in disrepair and its use was discontinued for a time. Later when appellees attempted to repair and nse the road appellants brought this suit to restrain appellees.

The complaint, after setting forth the ownership of the lands, contains the following material allegations: (a) It refers to a County Court Order in 1946 establishing the road in question as set forth in an exhibit which will be referred to later; (b) Appellees have failed to maintain the road and repair the fences along ,the same as required to do by the said County Court Order, and; (c) They are trespassers upon appellants’ lands. The prayer was that defendants be restrained from traveling through and across plaintiffs’ property. In their answer appellees, Jewell Hewitt and Boy Hewitt, admit that they have entered upon the lands of appellants for the purpose of improving the said road and also admit that the road was established in 1946 by an Order of the County Court of Pike County.

According to the exhibits attached to appellants’ complaint a petition was filed in the Pike County Court by John W. Hewitt (father of Jewell Hewitt and Boy Hewitt) and other petitioners (not named) to have a road established “to their bottom fields in Hempstead County.” (Note: It appears from the testimony that the road in question was used to reach the public road referred to above which ran south across the Little Missouri Biver and into Hempstead County.) Viewers, appointed by the court, made a report on which the County Court made the following order:

“It is therefore by the Court ordered, considered and adjudged that a road be and the same is hereby established for the use and convenience of petitioners John W. Hewitt and the general public to run Easterly from the SW-1/4 NE-1/4 Sec. 19, Twp. 9 S. B. 23 West, which lands are now owned by John W. Hewitt, down Little Missouri Biver not more than 60 feet from the Biver bank and not nearer than 30 feet to said Biver Bank; and said road shall be constructed at the cost and expense of petitioners and that petitioners be and they are required to fence said right of way by placing a substantial wire fence between said road and the land owned by W. R. Bowen and his wife, Elsie B. Bowen, and said fence shall be kept and maintained without cost to said landowners, W. R. Bowen and his wife, Elsie B. Bowen and their successors in title; and upon failure to so keep and maintain said fence, said road may be again fenced and taken into the inclosure of W. R. Bowen and wife, or their successors in title; he having agreed to give the right of way across his land free of cost on condition that same be kept fenced without cost to him.”

At the close of appellants’ testimony appellees demurred to the sufficiency of the evidence. The trial court sustained appellees’ demurrer with the exception hereinafter mentioned. Appellants rely on two principal grounds for a reversal. One ground is that there was substantial evidence to show the road had been abandoned by appellees and that appellees had breached the conditions of the County Court Order establishing the road. The other ground is “the court erred in not holding the Belt land was crossed by permission.” After carefully reviewing 'the testimony as set forth in the record we are of the opinion the trial court committed no reversible error.

First. We recognize the rule announced in Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225, that this case must be reversed if there is substantial evidence to support appellants ’ contention that the road had been abandoned by appellees. We find no such substantial evidence in the record. On the other hand the testimony affirmatively shows that appellees used the road until at least 1952. ' Appellants themselves do not question that appellees were given the right to use the road by the 1946 County Court Order. Before appellees could lose the right to use this road by abandonment it would have to first be shown that they, had abandoned its use for a period of 7 years. See Clinton Chamber of Commerce v. Jacobs, 212 Ark. 776, 207 S. W. 2d 616. As noted above there is no testimony to establish that fact.

Appellants also contend that appellees lost the right to use the road because of a noncompliance with the County Court Order which required appellees to construct and maintain a fence along the road. Said order also provided that “upon failure to so keep and maintain said fence, said road may be again fenced and taken into the inclosure of W. R. Bowen’ . . .” Again the evidence shows conclusively that the fence has.been maintained at all times and that the road had not been “taken into the inclosure” of W. R. Bowen’s land. It is true that appellants have maintained the fence in recent years, but they have done so of their own volition. At no time have appellees refused to keep the fence in repair. If appellants had wanted to reclaim the road under the terms of the Court Order they might have done so at the time of the breach but instead they elected to keep the fence in repair themselves and waive the breach.

Second. We cannot agree with appellants’ contention that “the court erred in not holding the Belt land was crossed by permission.” We find nothing in the complaint filed by appellants which raises this issue. On the other hand the complaint assumes that appellees acquired the right to use the road in question by virtue of the 1946 County Court Order. Not only is this true but there is no substantial testimony to show that the road crossed Belt’s land with his permission. On the contrary all the testimony we find in the record is just the opposite. Appellant, W. Ray Bowen, was asked: Q. “Did Mr. Belt give them permission to do that?” (referring to the road going across the Belt land). His answer was “I don’t know what Belt did.”

The testimony shows that the road as it is now located is not in full compliance with the 1946 County Court Order relative to its distance from the river. In sustaining appellees’ demurrer to the evidence the trial court provided that “if it be the desire of the plaintiffs (appellants) such roadway may be located where it now is or at a point along the river bank not more than 60 feet from said bank and not closer than 30 feet to said bank over the lands which were owned by Clyde Belt on the 4th day of June 1946, . . .” This part of the court’s order is not objected to by appellees.

Affirmed..


author: Sam Robinson, Associate Justice.

text:
    Higgs v. Higgs.
    5-1186
    299 S. W. 2d 837
    Opinion delivered March 18, 1957.

      House, Moses & Holmes, for appellant.

      Gladys Neal Brandon and Ivañ H. Smith, for appellee.
   Sam Robinson, Associate Justice.

This action was filed in the chancery court by appellee to compel appellant, the alleged father of an illegitimate child, to support such child. This appeal is from the chancellor’s order requiring the father to support the child. Appellant, the alleged father, contends that this is a matter relating to bastardy, and that Article 7, Section 28, of the Constitution of Arkansas gives the county court exclusive, original jurisdiction in such matters. Appellee contends that since appellant has acknowledged that he is the father the chancery court has jurisdiction to compel him to support the child. To sustain this contention, appellee relies on Acts 231, 242 and 294 of 1953.

Act 231 of 1953 makes it the duty of the prosecuting attorney, deputy prosecuting attorney, justice of the peace, or city attorney, to take action in a court of competent jurisdiction against the father of a legitimate or illegitimate child who fails to provide maintenance for such child. This statute does not provide that a bastardy proceeding may be instituted in any court other than one of competent jurisdiction. Act 242 of 1953 is basically a criminal law, but parts of the act apply to proceedings which appear to be civil in nature. But the act does not give the chancery court jurisdiction of any matter dealt with by the act, therefore we need not at this time pass on the validity of the act with regard to whether it is in conflict with the Constitution. Act 294 is clearly a criminal statute and does not apply to the kind of proceeding-involved in the case at bar.

Article 7, Section 28, of the Constitution provides: “The county courts shall have exclusive original jurisdiction in all matters relating to . . . bastardy . . .” The subject of bastardy is dealt with in detail in Title 34, Chapter 7 of Arkansas Statutes, found in Volume 3. The statutes provide that the county court has jurisdiction in bastardy proceedings. The statutes also provide for an appeal to the circuit court and a trial de novo in that court. Apparently, everything- that may arise in connection with a case of that kind is mentioned in detail.

The action in the case at bar is to compel an alleged father of an illegitimate child to support such child. If this is a bastardy proceeding, then original jurisdiction is in the county court and not in the chancery court, according to Article 7, Section 28, of the Constitution. This brings us to a consideration of the meaning of the word bastardy used in the Constitution. Ballentine’s Law Dictionary, page 142, defines a bastardy proceeding as “a proceeding- of a civil nature to compel a bastard’s father to support him.” And, that is exactly the kind of proceeding involved in the case at bar. “The common law affords no remedy to compel a putative father to contribute to the support of his illegitimate offspring. Statutes now exist in most jurisdictions, however, providing for judicial proceedings, usually called filiation or bastardy proceedings, to establish the paternity of a bastard child and to compel the father to contribute to its support.” 7 American Jurisprudence 679.

In Epperson v. Sharp, 222 Ark. 456, 261 S. W. 2d 267, the mother instituted proceedings in the county-court to compel the alleged father of her bastard child to contribute to the support of the child. In that case, this court said: “This is a bastardy proceeding.” Perhaps the reason for placing jurisdiction in bastardy matters in the county court no longer exists, but, nevertheless, the Constitution has not been changed, and the county court still has exclusive, original jurisdiction in such matters. The case at bar is clearly a bastardy proceeding, hence the chancery court does not have jurisdiction.

Reversed.


author: Carleton Harris, Chief Justice.

text:
    Bradley v. Jones.
    5-1234
    300 S. W. 2d 1
    Opinion delivered March 25, 1957.

      Ivan Williamson and Ben B. Williamson, for appellant.

      N. J. Henley; Fitton & Adams and Arnold M. Adams, for appellee.
   Carleton Harris, Chief Justice.

Garvin Jones, appellee, and Roy Bradley, appellant, were candidates for the office of County Board Member of Zone 3, Searcy County, Arkansas, in the school election held in said zone on March 17, 1956. Appellant, Bradley, was certified by the election officers, the county judge, and County Election Board of Commissioners, as the winner, the certified returns giving appellant 77 votes and appellee 56. Shortly thereafter, appellee filed his complaint in the Searcy Circuit Court contesting the election and alleging that he received the majority of the votes cast, and had been duly elected to said office. After an extended hearing, the Circuit Court, in a well written memorandum opinion, issued its findings of fact, and subsequent thereto entered its judgment finding that Garvin Jones, appellee herein, was duly elected to the office of County Board of Education, and ousting appellant, Roy Bradley, from office. Appellant filed his supersedeas bond, and appeals from the judgment of the trial court.

Eleven points are listed for reversal, hut many of these refer to the same alleged error, and can accordingly be passed upon without a full discussion of each point. For instance, the first four deal with whether the Circuit Court had jurisdiction of the parties and the subject matter of said suit.

Appellee filed his suit in the Circuit Court, but instead of having summons issued and served on appellant, served a notice on appellant (as provided in § 3-1205, Ark. Stats. (1947) Anno.) advising that the election was being contested and setting out the grounds upon which appellee relied. Act 366 of 1951 provides that the provisions of § 3-1204 shall be followed in election contests involving county and district school officers. The referred to Section states: “All actions or proceedings for contests as herein mentioned shall be by complaint filed in the Circuit Court as other actions at law * * * .” In Kirk v. Roach, 226 Ark. 799, 294 S. W. 2d 335, this Court held that the notice previously required to be given under § 3-1205 was no longer the proper method to obtain service on a defendant in an election contest for the county board of education or school director. Proper service could only have been obtained by service of summons, and appellant vigorously argues that since he was not served, he was never in court, and the Circuit Court had no jurisdiction, either of the person of appellant or of the subject matter. We do not agree that the court had no jurisdiction of the subject matter. The Searcy Circuit Court did, and does, have jurisdiction over the school election contests in that county. Act 366 changed the procedure for bringing contestees before the court. The question therefore is whether or not a court which has jurisdiction of the subject matter, can acquire jurisdiction of the parties involved, by their consent.

Appellant filed his answer to the complaint of appellee, admitting some allegations, and specifically denying others. Several motions were filed or made during the hearing by appellant. Throughout all these proceedings, before the trial, during the trial, and at the conclusion thereof, appellant never questioned sufficiency of service. On August 30th, notice of appeal was filed, in which appellant listed his points for reversal; the jurisdiction of the court still was not questioned. Our Court has repeatedly held that the entering of appearance without questioning the sufficiency of the service, amounts to a waiver of this requirement. Wilson v. Luck, 201 Ark. 594, 146 S. W. 2d 696; Mercer v. Motor Wheel Corp., 178 Ark. 383, 10 S. W. 2d 852; Auto Sales Co., Inc. v. Mays, 191 Ark. 884, 88 S. W. 2d 330. We therefore conclude that appellant’s argument that the court had no jurisdiction is without merit.

It is next urged that no competent testimony was adduced to destroy the verity of the returns. We disagree with this contention, and consider that the testimony was ample to show that the election was improperly conducted, entirely sufficient to justify the court in ordering the ballot boxes opened, and to consider the testimony as to how various voters cast their ballot. The facts, as developed by the testimony, upon which the Circuit Court relied for this action, are set out in its findings and will not be commented upon as we are adopting same in its entirety and incorporating it as a part of this Opinion.

Again, it is urged by appellant that the lower court committed reversible error in ordering the “stub” box to be opened and admitting the stubs as competent evidence, for the reason that the ‘ ‘ stub ’ ’ box was never delivered to the County Treasurer as required by law, but was delivered instead to the County Clerk. We cannot see how appellant was prejudiced. There is no allegation, nor proof, that the ballots were tampered with after being delivered to the Clerk, or that they were in any different condition than when delivered by the election officials. Actually, this “stub” box was placed in the vault of the Leslie State Bank under the orders of the Circuit Court, and no evidence was introduced that would tend to show it had been unlawfully removed from the vault or its contents disturbed. Appellee was not responsible and had nothing to do with delivering the said box to the Clerk rather than the Treasurer, and it would be grossly unfair to withhold his right to an office to which he has been elected because of an error on someone else’s part — an error, as previously stated, which resulted in no prejudice whatsoever to appellant.

Appellant argues that the trial court abused its discretion in ordering the original and “stub” ballot boxes brought into court and opened after appellee had rested his case. Appellant states that appellee never did ask the court to open the ballot boxes; however, the prayer of the Complaint asks that the ballots be impounded and that “the false, fraudulent, and spurious ballots be purged from the election returns.” We do not see how such a prayer could be granted unless and until the boxes were opened. At any rate, the court was well within its rights. The sole purpose of the hearing was to determine who had received the majority of legal votes cast, and the court was justified in prolonging the cause, or reopening same, if it felt that there was evidence available which would shed light upon the actual result of the election. Pulaski County v. Horton, 224 Ark. 864, 276 S. W. 2d 706.

Other errors are alleged, and we have examined each one, but find them to be without merit.

The Findings of the trial court, in which we completely concur, and which we adopt in full as part of this Opinion, are as follows:

“The election contest grows out of the school election held on March 17,1956, for the election of a member of the County Board of Education of Searcy County from Zone No. 3. The parties hereto were competitive candidates for said office. According to the official poll book 138 votes were cast at said election, while the tally sheets show a total of 133 votes cast for these two candidates. According to the official returns the contestee, Roy Bradley received 77 votes and the contestant, Garvin Jones received 56.

“The poll books and tally sheets properly made out and certified by the election officials and the ballots themselves are the prima-facie evidence of the result of the election, but not conclusive. They will stand until they are discredited by satisfactory evidence showing that they have not been preserved in the manner prescribed by law, or have been tampered with or falsified. So, in this case the Court is bound by the official election returns, unless there is substantial evidence sufficient to discredit the returns, in which case the Court may then, admit oral proof to show the results of the election.

“At the close of contestant’s testimony the contestee filed a motion to dismiss the complaint on the ground that contestant had failed to introduce affirmative proof sufficient to destroy the verity of the returns.

“The evidence indicates that during the noon hour on the day of the election the polling booth was closed, and only one of the election officials remained in the polling booth, namely, Manuel Griffin. That during this time one of the candidates, Boy Bradley, appeared at the polling booth and delivered a large brown manila envelope to the said Manuel Griffin, rapping on the door and obtaining admission. There was considerable confusion it seems, in the delivery of the election supplies at this polling place. There is evidence that two of the election officials had some election supplies in their possession the day before the election, while the Sheriff testified that they were delivered on the morning of the election. The evidence indicates that the election officials were strongly partisan in favor of the contestee. This fact is not evidence of fraud within itself, but should be considered along with all other evidence. Also, as mentioned above, there was a discrepancy of 5 votes between the tally sheets and the poll book. The Court thinks that this evidence is sufficient to justify the Court in overruling contestee’s motion to dismiss the complaint, and to grant contestant’s motion to open the ballot box, and to consider the oral testimony as to how various voters cast their ballot. After hearing the testimony as to the preservation of the ballot box the Court was of the opinion that the integrity of the ballots had been preserved. While the law provides that the stub box should be delivered to and kept by the County Treasurer, while in fact it was delivered to the County Clerk and kept in his custody, yet the testimony shows that the ballot boxes were properly safe-guarded by being placed in the vault of the Bank at: Leslie and kept there except on two occasions when they were removed for the Election Commissioners to canvass the returns and on another occasion, by consent of the attorneys when depositions were being taken. On each occasion they were promptly returned to the bank vault.

“The facts revealed when said ballot box and stub box were opened amply justified the Court’s action in opening same. It was found that there were 133 ballots in the box and each ballot was cast for one or the other of these candidates. The ballots gave no appearance of having been changed. The ballots themselves reflected that 76 were cast for Bradley and 57 for Jones. Of the 138 names appearing on the poll book there were 16 for whom there was no corresponding ballot stub bearing their poll number.

“The following ballot stub numbers were found in the ballot stub box, while there was no corresponding ballot in the ballot box: 411, 414, 427, 426, 435, 328, 437, 439, 440, 444, 455, 459, 458, 457, 463, 461, 462, 465, 464, 471, 472, 473, 476, 495, 503, 333, 332, a total of 27.

“Also the following ballots were found in the ballot box with no corresponding ballot stub: 370, 309, 295, 267, 266, 263, 297, 316, 319, 296, 257, 255, 300, 321, 443, 302, 264, 269, 268, 320, 262, 317, 318, 259, 299, 258, 298, a total of 27. Of this number, two — 370 and 309 were cast for Jones, and the other 25 were cast for Bradley. Incidentally, this is the same as the number of stubs found with no corresponding ballots.

“The law provides that the ballot is a writing and cannot be contradicted by parol evidence. But like other writings, it may be shown that it has been changed since it was cast, or that another ballot has been substituted in its place.

“A ballot is a writing of quasi-record and is the best evidence of how a voter cast his ballot. But when the evidence shows the ballot has been tampered with or changed since it was cast, it looses its verity as a writing and oral testimony may be received as to how the vote was cast. The Court is of the opinion that the ballots in this case have lost their verity and the Court must resort to oral testimony as to how the votes were east.

“The Court finds that the testimony of Gertha Griffin and Woodrow Loftin, who kept a record outside the polling place as to how various voters cast their ballot, based upon reports from the voters themselves as they came out of the polling booth, is not admissible, as being hearsay testimony. The Court is only considering the testimony of the individual voters themselves as to how they cast their ballot. The testimony indicates that 69 voters cast their ballot for Jones and kept their poll number and ballot number, while 11 voters testified that they voted for Jones but didn’t keep either their ballot or poll number, making a total of 80 persons who testified affirmatively that they voted for Jones. Of those voters who testified they voted for Jones and kept their ballot numbers, all of them correspond with the ballot numbers reflected by the ballot stubs, as well as the poll numbers shown on the poll book. The names of all those who testified they voted for Jones appear on the poll book.

“From all of these facts and the law governing the same, the Court must conclude that the contestant, Garvin Jones received 80 of the votes cast at said election, which is a majority thereof, and that he was the duly elected member of the County Board of Education at said election.”

Summarizing, we consider it unquestionably established that Jones received the majority of votes cast, and that he was accordingly elected as a member of the County Board of Education, Zone 3, Searcy County, Arkansas. Affirmed.

Since, because of the filing of the supersedeas bond by appellant, Jones has been denied the privilege of serving in the office to which he was elected, the Clerk of this Court is herewith directed to issue immediate mandate.


author: J. Seaborn Holt, Associate Justice.

text:
    Marshall v. Marshall.
    5-1224
    300 S. W. 2d 933
    Opinion delivered March 25, 1957.
    [Rehearing denied May 6, 1957]

      Cole & Epperson; James C. Cole, on reply brief, for appellant.

      Henry B. Means, for appellee.
   J. Seaborn Holt, Associate Justice.

The parties to this suit were the children of Mr. and Mrs.' H. H. Marshall, Sr., now deceased. Mr. Marshall died in 1934 and Mrs. Marshall in 1951. Following Mr. Marshall’s death, Mrs. Marshall was administratrix of his estate until her death. Appellants, Lambert Marshall and Anna Boyd Marshall (Lindvall) and appellee, Hubert Marshall, are the surviving children. Over a period of time up to August 26, 1940, Hubert Marshall became indebted to the Marshall Estate in the amount of $11,742.98, and to Mrs. Marshall, his mother, personally in the amount of $1,530. On August 26, 1940, he and his then wife, Helen Marshall, executed their note in favor of Mrs. Marshall as administratrix for $11,742.98, and on August 27, 1940, their note for $1,530 to Mrs. H. H. Marshall, personally, and at the same time they executed mortgages to secure these notes. These mortgages conveyed all the interest of Hubert Marshall (appellee) in his father’s estate, both real and personal, particularly describing same therein. Mrs. Marshall had both mortgages recorded, the former on August 27, 1940 and the latter September 6, 1940.

Thereafter, on December 13, 1940, discord having arisen between her and her husband, Helen Marshall filed two suits in the Hot Spring Chancery Court, one being a divorce suit against Hubert, and the other an action naming as defendants Hubert, Mrs. H. H. Marshall personally and also as administratrix of the estate, in which latter action she sought to set aside the two mortgages above on the grounds that their execution by her was procured through fraud, and she further sought to have Hubert’s one-third interest in his father’s estate subjected to her claim of dower, for child support, and alimony. Hubert did not appear or plead in either of these actions. It appears that a compromise settlement of these two suits was had which resulted in Mrs. H. H. Marshall paying to Helen a certain sum in cash (amount not shown in the record) and Hubert and Helen executing a warranty deed dated January 21, 1941 which recited :

“Warranty Deed-Know all Men by these presents: That we, H. H. Marshall, Jr., and Helen Marshall, his wife, for and in consideration of the sum of One Dollar and the further consideration of the cancellation of two promissory notes and mortgages in the separate sums of $11,742.98 and $1,530, which mortgages are of record in Book 27, pages 278, and Book 27, page 283, of the Mortgage Records of Hot Spring County, Arkansas, respectively, and the further cancellation of any other indebtedness we or either of us may owe to the grantee herein, to us cash in hand paid, the receipt of which is hereby acknowledged, do hereby grant, bargain, sell and convey unto Mrs. H. PI. Marshall, Sr., as administratrix of the estate of H. H. Marshall, Sr., deceased, and unto Lambert Marshall and Anna Boyd Marshall, as heirs of the said H. H. Marshall, Sr., deceased, and unto their heirs and assigns forever, the following real estate and personal property in the County of Hot Spring and State of Arkansas, to-wit: ... 1 (describing it); also all stocks and bonds and other assets belonging to the said estate including stock fixtures, accounts receivable and equipment belonging to the Marshall Motor Service; and also one 1940 model Ford V-8 truck 1-1/2 ton; the real estate herein mentioned being more minutely described as follows, to-wit: . . . (describing it)

“To have and to hold the same unto the said Mrs. H. H. Marshall, Sr., as administratrix, and Lambert Marshall and Anna Boyd Marshall, and unto their heirs and assigns forever, with all appurtenances thereunto belonging. And we hereby covenant with the said Mrs. H. H. Marshall, Sr., as administratrix, and Lambert Marshall and Anna Boyd Marshall, that we will forever warrant and defend the title to said lands, against all claims whatever. And I, Helen Marshall, wife of the said H. H. Marshall, Jr., for and in consideration of the said sum of money, do hereby release and relinquish unto the said Mrs. H. H. Marshall, Sr., as administratrix and Lambert Marshall and Anna Boyd Marshall, all my right of dower and homestead in and to the said lands and personal property. Witness our hands and seals on this 20th day of January, 1941.

“H. H. Marshall, Jr.

“Helen Marshall

“Acknowledgment State of Arkansas — County of Hot Spring — Be it Remembered, That on this day came before me, the undersigned, a Notary Public within and for the county aforesaid, duly commissioned and acting H. H. Marshall, Jr., to me well known as the grantor in the foregoing deed, and stated that he had executed the same for the consideration and purposes therein mentioned and set forth.” . . . and appeared “Helen Marshall, wife of the said H. H. Marshall, Jr., grantor in the foregoing deed, to me well known, and in the absence of her said husband declared that she had of her own free will, executed said deed and signed and sealed the relinquishment of dower and homestead in the said deed for the consideration and purposes therein contained and set forth, without compulsion or undue influence of her said husband.” This deed was duly recorded February 27,1941 by Mrs. Marshall in Deed Record Book 65, p. 461, Hot Spring County.

Helen was granted a divorce March 13, 1941. Lambert Marshall and Anna Lambert, appellants, brought the present suit in 1956 seeking a declaratory judgment construing the above deed and for a partition of all real estate in which the parties were tenants in common. Hubert (appellee) answered and filed a cross complaint in which he sought to have the deed reformed and declared to be a mortgage, or a resulting trust declared in his favor. The trial court decreed that no trust relationship was established but that the deed was, in fact, as appellee claimed, a mortgage, declared the interest of the parties to be one-third each in all the real estate and ordered partition, subject to Hubert’s original indebtedness to the estate. This appeal followed.

The primary and decisive question presented is, as appellee says, “what construction is to be placed on the deed above, whether it was intended to be a deed or mortgage.” The trial court upheld appellee’s contention that the deed was, in fact, intended to be a mortgage and so declared it. After reviewing the evidence presented, we have concluded that the court erred in so holding.

The appellee (Hubert) under our well established rules assumed a very heavy burden of proof in seeking to have the deed here, regular on its face, declared a mortgage. “For a deed to be treated as a mortgage, evidence that the instrument was intended to secure a debt must be clear, unequivocal and convincing.” Kerby v. Feild, 183 Ark. 714, 38 S. W. 2d 308. “The law presumes that a deed absolute on its face is what it appears to be, and the burden is on the one claiming it to be a mortgage to overcome this presumption by clear, unequivocal and convincing evidence.” DeLoney v. Dillard, 183 Ark. 1053, 40 S. W. 2d 772. Also see Newport v. Chandler, 206 Ark. 974, 178 S. W. 2d 240. “If there is a debt subsisting between the parties, and it is the intention to continue the debt, it is a mortgage; but if the conveyance extinguishes the debt, and the parties intend that result . . .” (Hays v. Emerson, 75 Ark. 551, 87 S. W. 1027) the character of the deed is an absolute conveyance. “In determining whether a deed absolute on its face is such, or is to be considered as a mortgage only, the question for the court’s determination is what was the intention of the parties at the time. ’ ’ Hudgens v. Taylor, 206 Ark. 507, 176 S. W. 2d 244. “The cancellation of a mortgage and satisfaction of a debt which it secured is sufficient consideration for a deed by the mortgagor to the mortgagee.” Clark v. Friend, 174 Ark. 26, 295 S. W. 392. “Another rule of construction is that the deed should be most strongly construed against the grantor.” Lawless v. Caddo River Lumber Co., 145 Ark. 132, 223 S. W. 395. “Evidence to prove that an instrument absolute on its face was intended by the parties as a mortgage is generally received by the courts with caution . . .” 36 Am. Jur. p. 755, § 134.

Much evidence was presented by the parties tending to establish their respective contentions. We deem it unnecessary to attempt to detail it more than to show that appellee by his own acts is precluded from claiming that the deed was intended to be and, in fact, was a mortgage, and that such acts were sufficient to turn the scales against him. No principle of equity is better established than that: “He who comes into equity must come with clean hands. The clean hands maxim bars relief to those guilty of improper conduct in the matter as to which they seek relief. It is invoked to protect the integrity of the court.” 30 C. J. S. 475 § 93. At the time Hubert and his wife Helen executed the deed here in question, Hubert owed many other creditors who were pressing him. By executing the deed he settled his indebtedness to the Marshall Estate and received full value for his interest therein, and his wife, who joined him in the deed, released all her dower rights to Hubert’s (her husband’s) interest in the estate. In fact, the only way Helen could release her dower interest in her husband’s property was by a valid deed, § 50-416, Ark. Stats. 1947.

Hubert testified that the instrument was in so far as his creditors were concerned a valid deed. He testified: “Q. If this was a mortgage and your interest was in excess of that then your creditors could come in for the excess? A. No, because there was a deed. Q. That was your understanding? A. So far as they were concerned it was a true and valid deed. Q. You took the execution of the deed as being a valid and true deed as against yonr creditors. A. For the time being I was needing enough to pay my creditors. I did hold at the time that this was the correct thing to do. Q. As between you and your creditors you called it a deed? A. I did at the time to my creditors.”

In effect, he says that the instrument was a valid deed in so far as it affected his wife and creditors but as to him it was only a mortgage. Obviously, he was agreeable to perpetrating a fraud on both his wife and outside creditors. The instrument could not be part deed and part mortgage, it was either one or the other.

Having concluded, as indicated, that the instrument in question was, in fact, in the circumstances a valid deed and not a mortgage, and that the “clean hands doctrine” precludes appellee from claiming otherwise, the decree is reversed and the cause remanded for further proceedings consistent with this opinion.