author: John A. Fogleman, Justice.

text:
    Claude S. “Sandy” CARTER, Jr. and Thomas C. BURKHEAD v. STATE of Arkansas
    CR 73-82
    500 S.W. 2d 368
    Opinion delivered October 8, 1973
    [Rehearing denied November 13, 1973.1

      Jim Hooper, Harkness, Friedman ér Kusin, and Jack Lessenberry, for appellants.

      Jim Guy Tucker, Atty. Gen., by: Philip M. Wilson, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellants Carter and Burkhead were found guilty of sodomy, alleged to have occurred shortly after 11:00 p.m. in Carter’s automobile which was parked at the public rest and tourist information facility adjacent to Interstate Highway 70, where other parties had parked trucks, automobiles and campers. Appellants admit the evidence is sufficient to sustain the jury verdict, if our sodomy statute is constitutional as applied to them. Thus, it will be unnecessary for us to set out the sordid testimony about the act, which appeared so revolting to one of the two deputies sheriff, who stated they observed it while patrolling the area, that he vomited thrice during the evening — the first time as an immediate reaction to his seeing what was taking place in the automobile, and the others while appellants were in custody and being “booked.” Although both appellants flatly denied that they had engaged in the homosexual act related by the police officers, they contend that even if they had done it, the state’s evidence only shows a consensual act in which two adult persons engaged. They were charged in the information on which they were tried with voluntary participation in an unnatural sex act in violation of Ark. Stat. Ann. § 41-813 (Repl. 1964).

The principal ground for reversal is that: the statute itself is an invasion of their right of privacy, which they allege to be protected by the First, Fourth, Fifth, Sixth, Ninth and Fourteenth Amendments to the United States Constitution; the statute is so vague and ambiguous as to deprive them of rights guaranteed by the state and federal constitutions; the application of the statute to them serves no legitimate state interest and that enforcement of the statute consdtutes cruel and unusual punishment. Appellants introduce their argument with a statement that they do not suggest the statute be declared unconstitutional in every application. They contend it is “only unconstitutionally overbroad as applied to consenting adults because all persons who engage in acts of sodomy are subject to prosecution under the terms of the statute, including husband and wife, consenting adults of the opposite sex, or consenting adults of the same sex, regardless of whether the act is committed in public or in private.”

The very strong presumption of constitutionality attendant upon every statute, requiring that all doubt be resolved in favor of constitutionality, is enhanced by the highly persuasive fact that the statute was long unassailed. See Stone v. State, 254 Ark. 566, 494 S.W. 2d 715; Williams v. State, 253 Ark. 973, 490 S.W. 2d 117; Poole v. State, 244 Ark. 1222, 428 S.W. 2d 628. As we said in Williams, if such a statute were in violation of federal constitutional principles, surely the thought would have long since occurred to the many legal scholars and jurists of this state. Appellants have not, by their multifaceted attack, met their very heavy burden of showing that this statute is unconstitutional.

We recently had occasion to consider and reject an attack on the constitutionality of this same statute in Connor v. State, 253 Ark. 854, 490 S.W. 2d 114. We do not agree with appellants that the difference in the two cases is sufficient to justify a re-examination of our holding there. We will turn our attention to arguments asserted as new and to alleged distinctions. Appellants allege a minor was involved and consent was not established in Connor. No point was made of the participation of the minor in reaching our conclusion in Connor. The mere fact that a participant is a minor does not prevent his consenting to the act. See Strum v. State, 168 Ark. 1012, 272 S.W. 359.

We can reject all cases cited by appellants relating to acts committed in private out of hand. No such act is involved here, in spite of a rather frail argument that the act, if committed, was done in the privacy of Carter’s automobile in a secluded area of a roadside park. In our opinion, the record simply does not support the idea that the act was committed in private, or in a rather remote area of the roadside park. Officer Phillips testified that the area was well lighted, and it was unnecessary for one to use a flashlight to observe people in the cars. The area is only 120 to 140 yards off the main interstate highway. It is approximately 40 to 60 yards wide. Burkhead described the area as quite crowded. He said there were a lot of people around and that some of the many cars parked in the area were near the Carter automobile. No greater degree of privacy than that shown in Connor can be said to have existed here.

We can just as readily dismiss those cases based on conduct between married persons and those rendered in jurisdictions where a “non-criminal physical relationship of homosexual nature” was involved. We do not find anything in citations to various “sex manuals” (even though they may have been best sellers) to be of such compelling force or effect that we may take judicial notice of the supposed data, arguments and recommendations of the authors, the expertise of some of whom is at least questionable. We likewise find nothing which persuades us that the Connor decision was wrong. If the legislative branch should, in the exercise of its investigative powers, find these works credible in considering statutory revision, we would acknowledge not only that the matter is, but that it should be, within its province. See People v. Hurd, 5 Cal. App. Bd 865, 85 Cal. Rptr. 718 (1970); People v. Ragsdale, 177 Cal. App. 2d 676, 2 Cal. Rptr. 640 (1960); People v. Massey, 137 Cal. App. 2d 623, 290 P. 2d 906 (1955).

In some mystical manner, appellants have woven together various unrelated decisions as support for their argument that the statute is an overbroad invasion of their right to privacy. These decisions all struck down some act as unconstitutional, and include those having to do with the education of children, compulsory sexual sterilization of habitual criminal offenders, interracial marriage and sexual relations, access to contraception information, private possession of obscene materials, and abortions. As we understand appellants’ argument, these cases lend support to their position because they demonstrate that the expansion of the “right to privacy in matters of intimate personal preference” is based upon the courts’ having taken cognizance of dramatic changes in social conditions which have made legal doctrines once appropriate become unsuited for contemporary society. If social changes have rendered our sodomy statutes unsuitable to the society in which we now live, we need not be concerned about the matter because there is a branch of our government within whose purview the making of appropriate adjustment and changes peculiarly lies. Since that branch has not acted, we adhere to the views expressed in Connor.

Appellants’ argument, that there is no legitimate state interest to be served by applying the sodomy statute to them, is hinged to a very great extent upon the contention that somehow the statute is constitutionally forbidden by that clause of the First Amendment to the Constitution of the United States prohibiting laws respecting establishment of religion. We rejected this argument in Connor and reject it here, and for the same reasons. The appellants additionally assert that the state must articulate the secular, social interests the statute under attack seeks to protect, suggesting that the failure to do so shows that the only purposes served do relate to establishment of religion. We do not think a recitation of purpose in the statute is necessary. Even if we should concede, and we do not, that the state had no interest in the suppression or minimization of sexual perversion, the condition existing at the time of this offense is illustrative of a valid state interest. Officer Phillips testified that the site is often frequented by children. The two male appellants, purportedly unacquainted, met there and in only a few minutes were in an automobile in the well lighted area enjoying fellatio. On cross-examination, Officer Phillips was asked to read his arrest report. It disclosed that this area, constructed for enjoyment and rest by travelers, had come to be frequented by homosexuals and that the sheriff’s office had received many complaints of such acts being observed and of visitors being approached by homosexuals. This is a clear and sufficient indication of the public interest to be served by the sodomy statute. People who come to such places for rest, recuperation and relaxation have a right to be unmolested, particularly by those in search of the exercise of their claimed right to sexual perversion, and should not expect to find in such havens as this the type of activities with which appellants were charged.

The police power is very broad and comprehensive and embraces maintenance of good order and quiet of the community, and preservation of the public morals. Williams v. State, 85 Ark. 464, 108 S.W. 838, 26 L.R.A. (n.s.) 482, 122 Am. St. Rep. 47, aff’d 217 U.S. 79, 30 S. Ct. 493, 54 L. Ed. 673, 18 Ann. Gas. 865; City of Helena v. Dwyer, 64 Ark, 424, 42 S.W. 1071. Under it, the legislature may, within constitutional limitations, prohibit all things hurtful to the comfort, safety and welfare of the people and prescribe regulations to promote the public health, morals and safety. Wright v. DeWitt School District, 238 Ark. 906, 385 S.W. 2d 644; Williams v. State, supra; Dabbs v. State, 39 Ark. 353, 43 Am. Rep. 275. In its exercise the legislature has a wide discretion in determining what the public interest demands and what measures are necessary to meet these requirements, and is limited only by the principle that its acts must reasonably tend to correct some evil and promote some interest of the commonwealth not violative of any direct, positive or necessarily implied constitutional mandate, or opposed to natural right and fundamental principles of civil liberty. Wright v. DeWitt School District, supra; Fiser v. Clayton, 221 Ark. 528, 254 S.W. 2d 315; Dabbs v. State, supra. See also, City of Helena v. Dwyer, supra. It is the duty of the courts to resolve all doubts in favor of the legislative action and to sustain it unless it appears to be clearly outside the scope of reasonable and legitímate regulation. Williams v. State, supra; Dabbs v. State, supra. In Williams, we found a legitimate state interest in prevention of annoyance to travelers by drummers soliciting for physicians, bath houses, hotels, etc.

In any event, we consider the sodomy statute to be a legitimate exercise of the police power by the General Assembly to promote the public health, safety, morals and welfare. See State v. Rhinehart, 70 Wash. 2d 649, 424 P. 2d 906 (1967); People v. Hurd, 5 Cal. App. 3d 865, 85 Cal. Rptr. 718 (1970).

Although appellants nowhere state, as a point for reversal, that our sodomy statute is void for vagueness, they somehow weave such an assertion into their argument that the statute serves no legitimate state interest. It is sufficient to say that whenever the definition of general words in a criminal statute, passed pursuant to the police power, may be adequately determined through reference to judicial decisions construing the statute, it is not void for vagueness. See State v. Anthony, 179 Ore. 282, 169 P. 2d 587 (1946). In Connor, we found the definitions in Strum v. State, 168 Ark. 1012, 272 S.W. 359; Mangrum v. State, 227 Ark. 381, 299 S.W. 2d 80; Havens v. State, 217 Ark. 153, 228 S.W. 2d 1003; and Smith v. State, 150 Ark. 265, 234 S.W. 32, adequate to meet this challenge, if the statute were otherwise subject to attack on this score. We again reject this argument.

Appellants also argue that since a maximum sentence of 21 years may be imposed upon consenting adults for sodomy, and the maximum punishment for a husband and wife engaging in normal sexual intercourse under the same circumstances would constitute nothing more than disorderly conduct, enforcement of the statute constitutes cruel and unusual punishment. Appellants call our attention to Ark. Stat. Ann. §§ 41-1432, 41-1401 and 41-2701 (Repl. 1964). Assuming, without deciding, that these statutes, and only these, would apply in the postulated case, the greatest possible punishment would be a fine of $300 and a jail sentence of one year. In order to sustain appellants’ argument here, whether it be based on cruel and unusual punishment or equal protection criteria, we would have to accept their arguments hereinabove rejected as a premise. This we cannot do. It is within the province of the legislative branch to classify crimes and determine the punishment therefor. Stout v. State, 249 Ark. 24, 458 S.W. 2d 42; Thom v. State, 248 Ark. 180, 450 S.W. 2d 550. No punishment authorized by statute, even though severe, is cruel and unusual unless barbarous or unknown to the law, or so wholly disproportionate to the nature of the offense as to shock the moral sense of the community. Davis v. State, 246 Ark. 838, 440 S.W. 2d 244. We cannot say that either appellants’ eight-year sentence or the 21-year maximum fails to meet any of these tests for constitutionality.

It is a long-standing rule of this court, and generally of other courts, that in order for one to have standing to challenge the constitutionality of a legislative act, the act must be unconstitutional as applied to him. If appellants’ attack, as stated and restated by them, is hinged, in substantial part, upon the assertion that the statute draws no distinction between acts committed in public and acts committed in! private, the very absence of the element of privacy of the act should deprive appellants of any standing to question the constitutionality of the statute. Certainly they have no standing to challenge its constitutionality as applied to husband and wife or consenting adults of opposite sexes. See May v. State, 254 Ark. 194, 492 S.W. 2d 888; Connor v. State, supra; Lienhart v. Burton, 207 Ark. 536, 181 S.W. 2d 468; Connor v. Blackwood, 176 Ark. 139, 2 S.W. 2d 44; Ferguson v. Hudson, 143 Ark. 187, 220 S.W. 306. See also, City of Ft. Smith v. Scruggs, 70 Ark. 549, 69 S.W. 679, 58 L.R.A. 921, 91 A.S.R. 100.

We have held that a statute long in existence, under which many cases have been prosecuted and its validity inferentially sustained, should not be held invalid except for very cogent reasons and, then, only on the attack of one injuriously affected by it. Swaim v. State, 184 Ark. 1107, 44 S.W. 2d 1098. Here we do not find cogent reasons to invalidate this act, which has existed for over 100 years, except for a reduction of the minimum punishment in 1955, and under which many prosecutions have been sustained. We further find that appellants have not been injuriously affected by its application.

We note that there are other jurisdictions which have rejected similar assaults on the constitutionality of such acts. See, e.g., Everette v. State, 465 S.W. 2d 162 (Tex. Cr. App. 1971); Pruett v. State, 463 S.W. 2d 191 (Tex. Cr. App. 1970); State v. White, 217 A. 2d 212 (Me. 1966); State v. Rhinehart, 70 Wash. 2d 649, 424 P. 2d 906 (1967); People v. Hurd, 5 Cal App. 3d 865, 85 Cal. Rptr. 718 (1970); People v. Roberts, 256 Cal. App. 2d 488, 64 Cal. Rptr. 70 (1967); People v. Ragsdale, 177 Cal. App. 2d 676, 2 Cal. Rptr. 640 (1960); People v. Massey, 137 Cal. App. 2d 623, 290 P. 2d 906 (1955); Washington v. Rodriguez, 82 N.M. 428, 483 P. 2d 309 (Ct. App. 1971); Jaquith v. Commonwealth, 331 Mass. 439, 120 N.E. 2d 189 (1954).

We find no error in the trial court’s sustaining the prosecuting attorney’s objection and motion to strike testimony of the professed fiancee of Burkhead in response to the question “Have you ever known Tom Burk-head to have any tendencies toward being a homosexual?” We do not take this response to be a statement of the witness’ opinion of either the physical or mental condition of Burkhead, as argued by appellants. The inquiry is more nearly equated with one as to this appellant’s character. We have defined character to be “what a person is” and to include natural and acquired traits. Biddle v. Riley, 118 Ark. 206, 176 S.W. 134. Proof of character cannot be made except by showing general reputation and not by specific acts or conduct. In Henson v. State, 239 Ark. 727, 393 S.W. 2d 856, the defendant presented the testimony of three young women, each saying that she had been alone with the defendant and he had never attempted to make any advance to her. The state rebutted this testimony by testimony of two other women that defendant had raped them. This court reversed the conviction, saying that none of the women should have been allowed to testify, because their testimony constituted an effort to show the character of the defendant by specific acts and was, therefore, erroneously admitted. We said that the evidence offered by the defendant was clearly inadmissible. The analogy is certainly sufficient to justify the exclusion of this testimony in the case before us.

In addition, however, we find authorities in other states have treated the particular question directly. In Berger v. State, 179 Md. 410, 20 A. 2d 146 (1941), the refusal to permit the wife of a defendant charged with an unnatural and perverted attack on another woman to be asked if her husband had ever shown any sexual abnormalities was held proper. In State v. Sinnott, 24 N.J. 408, 132 A. 2d 298 (1957), a sodomy case, the court refused to allow psychiatric testimony that the defendant did not have sexual deviate traits. Both courts held that such inquiries went to the character of the defendant, which could be proved only by general reputation of the accused and not by evidence of particular acts or conduct or testimony of intimates. Attempted showing of good character of one charged with taking indecent liberties with females under the age of 15, by showing a lack of previous incidents, was also held improper in State v. Fairbanks, 25 Wash. 2d 686, 171 P. 2d 845 (1946). We find ample authority for the rejection of the testimony in the cases cited and find textual support in 22A C.J.S. 898, Criminal Law, § 691 (391,

Appellants also assert that reversible error was committed by the prosecuting attorney in cross-examining Carter, and that their morion for mistrial on that ground was erroneously denied. The questioned interrogatory was asked after Carter had declined to answer when asked if he was a homosexual unless the word be defined by the questioner. When this occurred the cross-examiner propounded and received a negative answer to the following question:

... Is it not a fact, and I want to remind you that you are under oath now; is it not a fact that in another matter in this very court room, on that stand, that you testified under oath that you were, and are, a homosexual?

At the outset we do not agree with appellants that this form of question constitutes a stronger assertion of fact than it would had it begun with the words “Did you know that . . .?” We do not consider the question as worded to constitute an assertion of fact at all, particularly since the matter was not pursued when a negative answer was given. Neither do we agree that there is any assertion that Carter was involved in another prosecution. “[AJnother matter in this very court, on that stand” could as easily be taken to refer to a civil case as to a criminal one, and if taken to be the latter, to the prosecution of someone other than Carter. .

In the light of Carter’s evasion of preceding questions, we find no error here. Carter was subject to the same latitude of cross-examination as any other witness. But appellants contend that Carter could be impeached only under Ark. Stat. Ann. §§ 28-707 and 708 (Repl. 1962). Appellants misapprehend the proper application of these statutes. They are only a limit on the introduction of evidence to impeach or contradict the witness, but not upon his cross-examination. See Wilson v. Thurston National Insurance Company, 251 Ark. 929, 475 S.W. 2d 881; Bockman v. Rorex, 212 Ark. 948, 208 S.W. 2d 991. These statutes probably would have come into play had the state attempted to contradict the negative answer given by Carter. See Holcomb v. State, 218 Ark. 608, 258 S.W. 2d 505; Bockman v. Rorex, supra.

Appellants argue that there was reversible error in that the trial judge, court reporter and counsel for both state and appellants went into the jury room for the purpose of answering an inquiry by jurors. We hasten to point out that this occurred before our decision in Martin v. State, 254 Ark. 1065, 497 S.W. 2d 268. The record discloses an identical procedure here and in Martin. We hold that the error was not reversible on the authority of Martin. We trust that the caveat there is adequate to point up the hazards involved in such a procedure, and are confident that resort will not be had to it in the future.

Since appellants have failed to demonstrate that there was any reversible error, the judgment is affirmed.


source: Caselaw Access Project

author: J. Fred Jones, Justice.

license: Public Domain

text:
    Era SEALES v. Eugene DUCKETT et ux
    75-89
    499 S.W. 2d 626
    Opinion delivered October 8, 1973

      David J. Porter, and Potter ir Potter, for appellant.

      Ed Alford, for appellees.
   J. Fred Jones, Justice.

This is an appeal by Era Seales from a chancery court decree establishing a boundary line between her property and that of Eugene Duckett and wife.

Mrs. Seales and her deceased husband acquired approximately five acres of land by metes and bounds description in 1935. Their deed is not in the record but the south 205 feet of the tract apparently extended east to the county road and was bounded on the east by a county road and on the south by a state highway. The south end of the tract measured 390 feet. Mr. and Mrs. Seales sold approximately one-third of an acre by metes and bounds description, from the southeast corner of the tract, and a store building was built thereon. The deed description of this one-third acre started at the same point where the description in the Seales’ deed started, which was the southeast corner of the Seales’ tract and recites as follows:

Run thence west 80 feet, thence north 65 feet, thence west 30 feet, thence north 75 feet, thence east 110 feet, thence south 140 feet to the point of beginning.

The evidence is uncontradicted, that in laying out this one-third acre tract, Mr. and Mrs. Seales and their grantees first measured the north 110 foot boundary line by beginning at its east end in the center of the county road. The store building was erected on the south 65 feet of this irregularly shaped plot and was located within the area measuring 65 feet north and south and 80 feet east and west. The Seales home is located on the south portion of the acreage they retained and is west of the store building located on the one-third acre they sold. The one-third acre with the store building thereon changed hands by mesne conveyance several times after Mr. and Mrs. Seales first sold it to a relative in 1951. Mr. and Mrs. Duckett first acquired title to the the property in 1967. They sold it in 1970 and reacquired it later that year under the same legal description as follows:

Part of the E H of the SW M of the NE U of Section 15, Township 5 South, Range 28 West beginning at the SE corner of said forty acres and run 270 feet West, thence North 318 feet to point of beginning, thence West 80 feet, thence North 65 feet, thence West 30 feet, thence North 75 feet, thence East 110 feet, thence South 140 feet to point of beginning containing one-third acre, more or less.

The Ducketts tore down the old store building on the property and erected a new combination grocery store and gas station building thereon. Mrs. Seales filed the present suit against the Ducketts alleging that the north and south line between her property and that of the Ducketts was seven feet west of the old store and station building and that the Ducketts, in constructing their new building, had encroached on her property. She alleged that from 1951 until 1967 when the Ducketts first purchased the property, the dividing line betweeri the two parcels of land had been agreed upon, considered and accepted by all parties concerned, as running seven feet west of the old store building, and that she had exercised continuous adverse possession of the property west of such division line. She alleged that within the past two years the Ducketts had torn down the old building and station and had erected a new building and station at least three feet west of said division line and on her property. She prayed for an injunction against the Ducketts from using any of the property west of the new station and grocery store.

The Ducketts denied that their building or improvements encroached on Mrs. Seales’ land and denied the. existence of a mutual ageement as to the west boundary line. They admitted they had constructed a new building on the site of the old building but denied they had been using any part of Mrs. Seales’ land. The Ducketts alleged affirmatively that in August, 1970, Mrs. Seales executed an affidavit of adverse possession regarding the lands in question in which she stated that the Ducketts, and those under whom they held, had had actual and undisputed possession of the lands described in the deed for more than 30 years, and they argued that Mrs. Seales was es-topped to deny their possession.

The chancellor found that upon the north portion, the 75x110 foot portion of the tract involved, a home was built over 20 years ago and a fence was erected on the 75 foot west boundary line by the owners, and that this fence was agreed by the owners as being on the west boundary line of this portion of the tract. The chancellor also found that a fence had been built from the southwest corner of this portion of the tract for a distance of 30 feet east to the northwest corner of the south portion, or the 65x80 foot portion of the tract, and that this constituted the boundary line. The chancellor found that there was much evidence that the west or 65 foot boundary line of the south, or 65x80 foot portion of the tract, was seven feet west of the west wall of the old store building by agreement of the parties concerned, but no fence or other monuments had ever been erected along this line.

The chancellor found that Duckett tore down the old store building and built a new one with its west line being four feet further west than the west wall of the old building. The chancellor observed in his findings that Duckett testified that he claimed 15 to 20 feet west of the old store building but that Duckett’s wife agreed that Mrs. Seales had always gathered the pecans from the pecan trees in this area. The court then found the true western boundary line immediately west of the old store building to commence at an old corner post 30 feet east of the southwest corner of the north 75x110 foot portion of the tract, and to run south seven feet from the old store building. The chancellor found that Mrs. Seales had established a right to the property west of this line by adverse possession. As to the “lower part of the 65 feet,” the chancellor found from Duckett’s testimony that he built a new store four feet further west than the old one and that he claimed 15 to 20 feet west of the old store. The chancellor then found the proper division line to this area to be 11 feet west of the new store’s west edge.

The chancellor’s findings are not dear to us for the reason that the plat offered in evidence as plaintiff’s exhibit No. 1 and from which all parties testified, simply shows the metes and bounds description as above set out but does not indicate where either the old or new store building is located on the south 65x80 foot portion of the tract. In any event, the chancellor amended his original decree and fixed a boundary line as follows:

“Commence at the northwest fence corner of the Duck-ett property and run south along the existing fence 75 feet; thence run east to within one foot of the west wall of the new store; thence south to a point one foot west of the southwest corner of the ice house at the southwest corner of the new store; thence west 20 feet; thence south to the State Highway.”

Mrs. Seales testified that the true boundary line was seven feet west of the old store building and when the Ducketts rebuilt the store building and gas station, the structure was built three feet west of the true boundary line and on her property and in doing so they ruined one of her pecan trees. She said, however, that she never did mention the matter to Mr. and Mrs. Duckett during the course of construcdon. All the owners of the one-third acre tract prior to the Ducketts, testified that the west boundary line of the south portion of the property was seven feet west of the old store building. Mr. Oscar Young, who first sold the property to the Ducketts in 1967, said he told Duckett that the boundary line ran seven feet west of the store building. This was denied by Duckett. The appellant has assisted us considerably on trial de novo because she does not question the chancellor’s decree in its entirety but states the issue in her argument as follows:

“The sole issue contested is the line drawn from a point ‘1 foot West of the Southwest corner of the ice house at the Southwest corner of the new store; thence West 20 feet; thence South to the State Highway.’ ”

The appellant then argues that there is no evidence to support this erratic change in direction of the boundary line and we are forced to the conclusion that the appellant is right in this contention. A survey was attempted in an effort to locate the boundary line of the property involved but admittedly the survey was of no probative value.

The Ducketts contend that the problem arose by reason of the Sealeses laying out the boundaries of the one-third acre from the center of the county road on the east side of the property rather than from the west side of the road as called for in the deed description, and they contend that Mrs. Seales’ affidavit of adverse possession above referred to, estops her from contending otherwise. Mrs. Seales as well as Mr. Turner, who owned the property at the time, and for whose benefit the affidavit was made, testified that Mrs. Seales stated at the time she made the affidavit that the west boundary line of the one-third acre tract ran seven feet west of the old store building. The affidavit simply referred to the deed description of the property and we conclude that the chancellor did not err in holding it did not work an estoppel under the evidence in this case.

From the record before us it would appear that the west line of the 65x80 foot south portion of the tract ran within seven feet of the old store building that had been on the property, and that the new building was built with its west wall extending to some extent west of this boundary line. It is apparent from the record that Mrs. Seales acquiesced, or at least she did not object, to the Ducketts building their building with its west wall extending onto her property and, as a matter of fact, she does not contend that the building should be removed from the property but seems to acquiesce in accepting the chancellor’s decree that the west line of the 65x80 foot tract should extend within one foot of the new store building. Apparently none of the parties, in preparation of this case for trial, measured the distance from either the center or the west side of the county road to the west wall of the store building, and the record does not show the distance from the southwest corner of the new store building south to the highway.

Apparently the chancellor based that portion of his decree complained of by Mrs. Seales in this case, on adverse use by Duckett and his predecessors in title, but we find no evidence in the record that would sustain this portion of the decree. No one ever questioned Mrs. Seales’ ownership of the property to within seven feet of the west virafl of the old store building until Duckett purchased the property in 1967. Duckett said he built his new building with its west wall extending approximately four feet further west than the old building, but that he claimed and exercised dominion over an area 15 or 20 feet west of the old building. This testimony falls far short of proving adverse possession sufficient to establish title to the area involved. It is admitted by all parties concerned that trucks make deliveries of merchandise to the rear or west end of the store building on the property, but certainly there is no evidence that any one ever claimed title to this area adverse to Mrs. Seales until the claim made by Mr. Duckett after he purchased the property in 1967, well within the past seven years. As a matter of fact Mr. Young, from whom Mr. Duckett first purchased the property, testified that he attempted to purchase the area involved from Mr. Seales; that Mr. Seales refused to sell at any price but permitted him to use the area.

We are of the opinion that the evidence establishes that the old store building was constructed seven feet from the west boundary line of the south 65x80 foot portion of the tract or else that boundary line was established seven feet west of the old store building. Whatever the situation in this regard, it would appear that the true west boundary line should extend its entire length of 65 feet to the south line of the original tract. In any event, we find no evidence in the record that Duckett has acquired title by adverse possession or otherwise to that portion of the property from “1 foot west of the Southwest corner of the ice house at the Southwest corner of the new store; thence West 20 feet; thence South to the State Highway.”

We conclude, therefore, that this case should be remanded to the chancellor for the entry of a decree fixing the boundary lines in a manner not inconsistent with this opinion.

Reversed and remanded.


author: Conley Byrd, Justice.

text:
    Glenn D. McENDREE v. Flora B. McENDREE
    6053
    499 S.W. 2d 596
    Opinion delivered October 8, 1973

      Edgar R. Thompson, for appellant.

      Bailey, Trimble ir Holt, by Jack Holt Jr., for appellee.
   Conley Byrd, Justice.

This appeal arises out of a property division made in a divorce decree between appellant Glenn D. McEndree and appellee Flora B. McEn-dree. For reversal appellant contends:

“I. Appellee did not proye that she was a partner in this business and never made any showing that any of the property was in her name and the court erred in awarding her more than a dower interest in and to the property.
II. Monies furnished by Charles S. McEndree Brother of Glenn D. McEndree found their way into the one-half of the net proceeds of the estate awarded to Mrs. McEndree and the court disallowed any credit for sums owed by Glenn D. McEndree to Charles S. Mc-Endree and those sums should have been deducted in determining her interest, if any.
III. The court erred in making a distribution of the assets without receiving from the receiver a full accounting on which to base such distribution.”

I. We find no merit in the first contention. Appellee testified that they acquired the property in question and lived in a house trailer until they constructed their house. When they moved into the house they rented the house trailer and accumulated nine or ten more trailers which they rented. She stated that she helped in the operation of the trailer park. Appellant at first admitted that he and appellee owned the Tanglewood Mobile Manor Trailer Park and that after they moved into their house they started acquiring the other trailers. However, he testified that the other trailers were acquired from the accumulated rentals from a trailer owned by his brother. As we view the testimony, the issue before the trial court was one of credibility, and we cannot say that the chancellor’s findings were against a preponderance of the evidence.

II. We cannot say that the trial court, in dividing the property, erred in disallowing credit for monies allegedly furnished by appellant’s brother. In the first place it is difficult to follow appellant’s testimony to determine how much or what part of the brother’s money found its way into -the trailer park. In the next place appellee denied any knowledge of any money belonging to the brother going into the business. Furthermore, the proof shows that between the time of the filing of the complaint for divorce and the service of the summons appellant removed certain funds from the parties’ savings accounts and mortgaged the trailers for $10,000 and that those funds have not been accounted for by appellant. When appellant’s testimony is considered in light of his conduct, we cannot say that the chancellor’s finding that the debt to appellant’s brother was the sole and separate obligation of appellant is contrary to a preponderance of the evidence.

III. We find no merit in the contention that the trial court erred in making a distribution of the assets without a full accounting from the receiver. We do not find an abstract of the order of distribution. Furthermore, the receiver is not a party to the appeal.

Appellee’s attorneys are awarded an additional fee of $1,000 for their services on appeal.

Affirmed.

Holt, J., not participating.


text:
    Mary Jo BURCHFIELD, Individually and as Administratrix of the Estate of Jane SMITH, Deceased v. Thomas F. CARROLL et al
    73-100
    499 S.W. 2d 620
    Opinion delivered October 8, 1973

      Howell, Price, Howell if Barron, by: Richard J. Orin-tas, for appellant.

      Wright, Lindsey if Jennings, for appellees.
   Conley Byrd, Justice.

Appellant Mary Jo Burchfield individually and as administratrix of the estate of Jane Smith, deceased, brought this wrongful death action against appellees Thomas F. Carroll, Ronnie Colbert and Royal Crown Bottling Company, a/k/a Basil Snyder Bottling Company, Inc. After the witnesses on the liability issue had completed their testimony, the trial court directed a verdict in favor of the Royal Crown Bottling Company and its truck driver Ronnie Colbert. After a discussion with counsel a directed verdict was also entered as to appellee Carroll. For reversal appellant contends:

“I. The trial court abused its discretion in directing a verdict for appellees and deprived the appellants of a determination of the facts by a jury when there was sufficient and substantial factual evidence submitted by appellants on which a jury could have found negligence and damages against appellees.
II. The trial court abused its discretion in directing a verdict for appellees before the close of appellants case in chief.”

Appellee Colbert being called as an adverse witness testified that upon entering the residential area of Gravel Ridge on Highway No. 107, he observed, about a quarter of a mile away, two elderly women proceed from their house toward the highway apparently for the purpose of crossing it. He began slowing down because he didn’t know what they were going to do. About the time he brought his truck to a stop and turned on his. flasher lights the two ladies started across the road. One of the ladies went on across but the other one, appellant’s decedent, turned and went back to the side of the road and then again started across. Appellee Carroll’s automobile struck appellant’s decedent before she got across the road. Although Colbert here testified that he was only stopped for a moment before the woman was struck, he admitted that when -asked on a deposition if he was stopped for less than two minutes that he had stated that it was less than two minutes. Colbert admits that he had not seen Carroll in his rear view mirror prior to the time the woman was struck.

Carroll testified that he had been following behind the Royal Crown truck in a 1963 Comet for some time, and that, when the truck started slowing down on the straight stretch of the highway, he pulled out to pass it at the first opportunity. Admittedly, Carroll did not see the two women prior to the time he pulled out to pass. He says that when he pulled out to pass, the truck had not completely stopped. When he saw the first woman go across the road, he applied his brakes and then speeded up before he saw the other woman that he hit. He estimated his speed at the time of impact at less than 45 miles per hour. He also testified that he did not see the flasher lights on the truck.

Appellant’s principal reliance for reversal is based upon the proposition that Colbert by stopping the truck under the circumstances was in violation of Ark. Stat. Ann. § 75-647 (Repl. 1957), providing as follows:

“(a) Upon any highway outside of a business or residence district no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled part of the highway when it is practical to stop, park, or so leave such vehicle off such part of said highway, but in every event a clear and unobstructed width of at least 20 feet of such part of the highway opposite such standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicle be available from a distance of 300 feet in each direction upon such highway.
(b) This section shall not apply to the driver of any vehicle which is disabled while on the paved or improved or main traveled portion of a highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such position.”

We find no merit to appellant’s contention. In the first place the evidence shows that the collision occurred in a residential district. In the next place the statute does not apply to stops arising out of the exigencies of traffic. See American Bus Lines, Inc. v. Merritt, 221 Ark. 596, 254 S.W. 2d 963 (1953).

After, the trial court had directed the verdict for Colbert and the Royal Crown Bottling Company, Carroll’s attorney .then made a motion for a directed verdict. Counsel for appellant then made what we consider to be a practical decision and told the court: “Judge, if you are going to dismiss (the Bottling Company and its driver) you might as well grant (Carroll’s) motion, too.” Upon this record we do not believe that appellant is entitled to a reversal as to Carroll unless we should also find that the trial court erred in granting a, directed verdict as to the Bottling Company and its driver.

Appellant now contends that the trial court erred in granting the directed verdict before all of her.proof was in. In the trial she conceded that she had called all of her witnesses on the liability issue.and did not raise the objection now urged. Thus, not having raised the objection in the trial court it comes too late on appeal.

Affirmed.

       We take the statement to mean that a judgment against'Carroll-would Háv.e no value. By proceeding in this manner appellant saved the expense of proving . her damages. ' .. ...


author: Frank Holt, Justice.

text:
    Carl A. MOORE v. Eunice (MOORE) SMITH
    73-84 and 73-85
    499 S.W. 2d 634
    Opinion delivered October 8, 1973

      Milton G. Robinson, for appellant.
    No brief for appellee.
   Frank Holt, Justice.

Appellant sought custody of his 12-year-old son which the court denied. The custody of the boy was continued with the appellee mother. On appeal appellant contends that the chancellor’s findings are not supported by the evidence. We think the appellant is correct. We review the evidence, as abstracted, since the appellee does not favor us with a brief.

We first observe that the controlling principle in child custody cases, which are always difficult, is focused solely upon the best interest of the child. In Stephenson v. Stephenson, 237 Ark. 724, 375 S.W. 2d 659 (1964), we held:

“In custody matters the unyielding consideration is the welfare of the children. It matters not to this court which of the parties ‘wins’ custody, so long as the children are the ultimate winners of good care and home.”

Appellant and appellee were divorced in 1963 at which time the appellee was given custody of their 2-year-old son, Carl, Jr. This was appellee’s second of five marriages. It appears the appellant and appellee continued to live in the same vicinity. The appellant had enjoyed visitation rights with his son and maintained support payments. For about three months before this litigation, the boy had lived with the appellant father with appellee’s consent. The appellee brought contempt proceedings against the appellant at the end of the three months alleging that he had refused to return their son to her. Appellant, by counterclaim, sought custody. The court found that the appellant was not in contempt and continued the custody of the child with the appel-lee. The appellant appealed from the denial of custody to him. About two weeks after this hearing, the appellant instituted another action seeking custody of his son alleging, inter alia, that the appellee mother had physically abused their son and the boy had fled to the shelter of appellant’s home, whereupon the appellant took his son to the police and left him in their care. The police> at the direction of the chancellor who had received two telephone calls from appellee seeking advice, returned the child for the time being to the father. Upon a hearing the court again continued the custody with the appellee. The two adverse decrees as to custody are consolidated on appeal.

In the first custody proceeding, as abstracted, the appellee testified that her son would not mind her although “he minded his father;” her son loves his father more than her; he wanted to live with his father; the father had bought him a mini bike, a Honda, and a sword; she was receiving $93 a month in Social Security payments from appellant for maintenance of the boy until appellant stopped payment to her after she let their son live with appellant for three months; because she had to leave for work at 6:30 a.m., she yielded to appellant’s request about three months before this litigation to let the boy stay with the appellant; and this permission was solely for the welfare of the child because the father, who was retired, could let him sleep longer, take him to and pick him up from school. She further testified that the father had kept his agreement with reference to child support; she had never heard the appellant encourage the boy not to mind her, although she could not make the child mind her and that he had no respect for her; and her son had reported to the police that she had “beat” him.

One neighbor testifying for the appellant, stated she had two children approximately the same age as appellant’s son and they played together; Carl, Jr., is high strung, high tempered and hard to approach; after he had spent more time with his father his attitude was better; and he played with other children without throwing fits. For the past several months this neighbor had observed a car parked in front of appellee’s house on numerous occasions and at times the car was there in the morning; Carl, Jr., said the man’s name was Bill; her little girl had made curious inquiry as to why this man was staying there so much; Carl, Jr., was having problems with his grades, although he attended school regularly; and appellee kept Carl, Jr., clean.

The appellant testified that he took his son on short trips with appellee’s knowledge; appellee had brought their son to live with him stating he could live there as long as he wanted to; appellee never asked him to return their son to her during the three months until the day he had the $93 Social Security check stopped being sent to her; he had understood they had a binding agreement that their son would live with him and he had refused to allow the child to return because of her living with Bill, her paramour. On legal advice, however, he permitted the boy to return to appellee with the understanding that she would “stick to her agreement” about not living with Bill; the night the boy was returned to appellee he went to the police because the appellee had whipped him and the police brought the boy to him; he loves his son very much and when his mother brought their son to him in March to live with him, their son was sick and disturbed; after a few hours he “calmed down;” appellee admitted to him Bill was staying with her and it was no one’s business except hers. The boy needed orthodontic care which would cost $1,500 or $2,000.

The appellant, again testifying, said that after the boy had lived with him for three months he gained weight but lost weight upon his return to his mother; a few days before this first hearing he had taken him to a doctor who had prescribed medicine for the boy’s nerves and another prescription for his stomach; the boy had made failing grades until he reached the sixth grade where he made nearly a “C” average because, he had had three months opportunity to work with him; the appellee admitted to him that it was making their son nervous when she lived with her' husband, Max Smith, to whom she was twice married and divorced, inasmuch as they were “having fusses and fights almost continuously.”

A playmate of Carl, Jr.’s, testified that a man named Bill lives with the appellee; Bill, sometimes stays with the appellee at night and that he had seen them “laying down in bed together,” once with their clothes on and another time “they were up under the cover.” He further testified that once when he spent the night with Carl, Jr., he awoke and saw Bill going to the bathroom clothed only in his undershorts. He admitted that he and Carl, Jr., were good friends and had enjoyed shooting guns together. He said appellant had promised to give him a gun. However, he denied it was in relation to the trial.

Carl, Jr., testified that a Bill Andrews lived at their house; he had seen him in the bedroom with his mother and observed him leave her bedroom unclothed. When he complained to his mother about the presence of Bill, she told him it ,was not any of his business; he was afraid of Bill and had told his mother he wanted to live with his father. Carl, Jr., again testifying, stated that he was in the 6th grade; his father had been carrying him to school for the last two or three years when his mother had left him with his father as she went to work; he ate breakfast with his father and that his father picked him up after school and fed him; his father helps him with his school work and his mother never assists him; his father takes him to Sunday School and that his mother never does so; he had heard his mother cursing his father as well as a subsequent husband, one to whom she was married twice; she and this husband were constantly fussing and fighting; he had observed her drinking; and that he had never heard his father curse or observe him keeping or drinking intoxicants at his apartment. Carl, Jr., testified several times emphatically that he preferred to live with his father.

A juvenile court officer testified that she had observed Carl, Jr., on two occasions and noticed he had a “nervous mannerism consisting of twisting his hair.” This caused bald spots on the front of his head. The minister of a local church testified that the appellant was a member of his church, attended with reasonable regularity, and he had observed the appellant bring his son with him. The home of the appellant, who lived alone, was clean and well kept. There was other testimony that Bill was seen at appellee’s house where drinking occurred; that appellee had attended local night clubs with Bill as well as being unescorted and dancing with strangers.

Appellee’s son, by her first marriage, testified that his mother provides a nice home for Carl, Jr., loves him and takes good care of him. On cross-examination, he admitted that when he had lived in his mother’s home, with his mother’s knowledge, he was dating a married woman, who was pregnant by him, and further she had spent several nights there. She was later divorced and he married her. He further admitted that during the time appellant and his mother were married, appellant supported his mother as well as himself and his sister.

There was evidence by one witness, who was related by marriage to the appellee, that preceding the first hearing appellant had mentioned $500 to her after her husband said to appellant he was "broke.” However, she said no one heard appellant make that statement to her and “they had not been talking about this case.”

Appellee adduced evidence from her daughter (appellant’s stepdaughter) and another witness that appellee maintained an attractive home and environment, had good meals, and Carl, Jr., was well cared for. The appellee denied that she was living with any man; she considered herself a “good mother” and although she has attended various taverns, she does not drink to excess and always left her son in the care of his father because he is “in good hands;” she was married and divorced five times; she could not control her son and he told her he was going to live with his father because he loves him more than he does her; because he cried and wanted to live with his father she had permitted him to stay there three months “until you get yourself straightened up;” and her son would “lie.”

The court continued the custody of the child, as previously indicated, with the appellee mother. Approximately a week following this hearing the appellant, as indicated previously, renewed his petition for custody of the child. At a hearing upon that! petition the child testified that a few days after his custody was continued with his mother she became angry with him when he told her, in response to a question, that his love for his father was greater than for her and that he didn’t love her. She struck him and started pulling his hair. As she tried to find a belt he escaped and ran to his father’s house and his father took him to the police station; his mother came and took him to his father’s where he lived about a week and then had to go back to his mother’s; that presently, when his mother leaves at 6:30, she leaves him with his half sister who takes him to school at an early hour resulting in his having to wait at the schoolyard until the building opens.

The appellant testified that when the boy appeared at his home after the altercation with his mother his eyes were red and his hair messed up. He complained that his mother had mistreated him. Appellant took his son to the police station. The appellee later brought the boy from the police station to his house stating that the judge had advised her to do so. The chancellor verified that he had suggested this solution to the ap-pellee since she had called twice saying her son was “out of her control” and she wanted his advice. The appellee admitted that she slapped the boy because he would not mind her and that he left saying “I still hate you and I am going to live with my dad.” Again, Carl, Jr., testified and urgently reiterated that he wanted to live with his father and the three months he lived with him were the “happiest” time he had ever had in his life.

It is true that in custody proceedings the mother is ordinarily favored and this maternal inclination entertained by the courts is based on the child’s needs especially at an early age. However, we have said “[T]hat principle, however, loses some of its force as the child grows older and is not so strong in the case of a ten-year-old boy as it would have been much earlier in the child’s life.” Qualls v. Qualls, 250 Ark. 328, 465 S.W. 2d 110 (1971). As indicated in Stephenson v. Stephenson, supra, the courts are primarily concerned with the welfare of the child and if the father seems to be the better parent for the child’s best interests then the courts will vest custody in the father. Jackson v. Smith, 250 Ark. 923, 467 S.W. 2d 704 (1971), Campbell v. Richardson, 250 Ark. 1130, 468 S.W. 2d 248 (1971). The attitudes and wishes of the child, although not controlling, are proper for the consideration of the chancellor in making an award of custody. Campbell v. Richardson, supra. We have recently approved a change of custody of a 15 year-old-girl to her father where the girl expressed a strong desire to return and live with her father and three brothers. Ray v. Manatt, 250 Ark. 230, 465 S.W. 2d 111 (1971). In that case the change of custody was approved even though the mother was "... shown to have been a dedicated and devoted mother making every effort to meet her daughter’s special problem . . .” and she was a “. . . very wise, discerning and unselfish mother.”

Of course, chancery cases are tried de novo on appeal and the decree will not be disturbed unless it is against the preponderance of the evidence. We also give particular importance to the chancellor’s findings in these cases because of his position to observe the witnesses, their credibility, and the affection or lack of affection demonstrated by the competing parents or parties. Wilson v. Wilson, 228 Ark. 789, 310 S.W. 2d 500 (1955). However, if the preponderance of the evidence indicates that the chancellor did not award custody to the parent who could best provide for the future welfare of the child, we must reverse. Cox v. Tucker, 251 Ark. 714, 474 S.W. 2d 675 (1972). In the case at bar, we definitely are of the view that the future welfare and best interests of the child are with the father. The appellee, the mother, has been married and divorced five times — three times following the divorce from Carl, Jr.’s, father. Two of these marriages and divorces were to the same man and it appears undisputed that both of these marriages were characterized by constant cursing and fighting. Carl, Jr., failed in his grades although it appears from the testimony that he was socially promoted. According to Carl, Jr., only his father ever helped him with his studies and took him to Sunday School. It does not appear that his mother denied this. There was evidence that his mother permitted her paramour to live in her home and apparent illicit relations were observed by Carl, Jr., and a playmate. Appellee denied this and presented evidence she maintained a “spotless” house and properly cared for her son.

It could be that the father competed for the love and custody of his son by influencing him and his playmate as to their testimony. Also, that the parties’ 12-year-old son lied as his mother stated he would do. The mother admitted however, that she could no longer discipline the boy and he was “out of control.” A disinterested witness, a juvenile court officer, described him as a nervous child who twisted his hair to such an extent bald spots resulted. A doctor furnished a prescription for his nervousness and another for his stomach. Suffice it to say that Carl, Jr.’s, nervous conduct is a persuasive manifestation of the insecurity and instability generated by his unstable homelife. The emotional and physical impact of his experiences living with his mother, coupled with his unequivocal desire and demonstrated efforts to live with his father is sufficient together with the other circumstances, to clearly establish that the evidence preponderates in favor of the child’s custody being awarded to his father.

In Beene v. Beene, 64 Ark. 518, 43 S.W. 968 (1898), we said:

***The elder of the boys, now about nine years old, has probably arrived at that age when a father’s peculiar character of oversight and control may begin to be more necessary than the mother’s***.

That reasoning is particularly applicable in the case at bar.

Appellant next contends that the chancellor erred in ordering the defendant to pay attorney’s fees for appel-lee’s counsel, since there was no showing of need on her part or ability to pay by appellee. The award of attorney’s fees is within the sound discretion of the trial court in a child custody case even though an aftermath of a divorce. Hydrick v. Hydrick, 224 Ark. 712, 275 S.W. 2d 878 (1955). In the case at bar the chancellor heard the testimony concerning the wages earned by Mrs. Smith. Appellant misplaces the burden of proof here. The burden is on appellant to show that the chancellor abused his discretion. Appellant does not demonstrate he is unable to pay the fees nor that .appellee’s financial needs did not require the allowance.

The award of custody is reversed and remanded for proceedings not inconsistent with this opinion. The allowance of attorney’s fees is affirmed.

Affirmed in part and reversed in part.


author: Carleton Harris, Chief Justice.

text:
    Gregory Allen SPENCER v. STATE of Arkansas
    CR 73-84
    499 S.W. 2d 856
    Opinion Delivered October 15, 1973

      Harold L. Hall and Garner L. Taylor Jr., for appellant.

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

Gregory Allen Spencer was convicted in the Pulaski County Circuit Court of the crime of first degree rape, the jury fixing his punishment at life imprisonment in the Arkansas Department of Correction, and from the judgment entered in accordance with that verdict, appellant brings this appeal. For reversal, two points are asserted; first, that the trial court erred in refusing to give appellant’s Requested Instruction No. 2, and second, that the evidence was insufficient to support the verdict. For convenience, the second point will be first discussed.

Carolyn Jean May, 17 years of age, testified that she left her home at 1515 Cumberland in Little Rock about 5:00 A.M. to walk to her mother’s home in Highland Court several miles away. At 14th and High Streets, appellant and a friend of his were engaged in conversation and she talked with them. Appellant’s friend walked across to a liquor store, purportedly to buy cigarettes, and the witness stated that subsequently Spencer placed a knife to her throat and told her that if she did as he said, he wouldn’t hurt her in any 'way. Mrs. May stated she was -scared, shaking, and begging him to take the knife away from her throat, and that he told her to put her arms around him and do as he said. They then went to his apartment where she stated that she was raped. When interrogated as Jo whether she tried to escape, she said that she looked out of the window^, saw that the roof was too high, and slanted, and that while Spencer did not have the knife on her at the time, she was fearful that he would draw it again. Spencer was living with another girl, Angie Lee Roberts; after the alleged rape, Mrs. May told appellant that she had to go to the bathroom, and in the bathroom she asked Angie to help her get away, but the latter refused, stating that she was afraid and “they would all come up missing”. At that time Spencer came to the door and inquired what was taking so long. Spencer then went to the store to get cigarettes and returned to the Spencer apartment where appellant, Mrs. May, Angie Lee Roberts, and Larry Metz (the person' who had been with Spencer on the street) played cards. The witness stated that they all then went to a store to buy cold drinks, and that she tried to “motion” someone in the store in order to convey her predicament, but could not get .anybody’s attention. After returning from the store, they went across the street to the apartment of Metz. There, Mrs. May, according to her testimony, still looking for an opportunity to escape, stated that her feet were cold and she wanted her shoes (which were still at the Spencer apartment). Appellant, at first, was unwilling to let her go, and kept whispering to Angie. Finally, he agreed and the two girls then started to the Spencer apartment but before reaching it, the witness talked Angie into letting her go.

There was corroboration of some of this evidence by Angie Lee Roberts. She said there was a window in the bathroom, but it was too small to go through, and that when she had first arrived at the apartment, Larry had told her not to go upstairs. She said that Spencer told her not to let Mrs. May go; that the prosecutrix had begged, but that she (Angie) was afraid of Spencer. She • said she had told Mrs. May not to say anything when they went into the store and that she heard Spencer tell Larry Metz, “Watch her.” She testified that Spencer told her “not to let her [Mrs. May] go at all ### to hold her to keep her from going.” She was then asked what happened after she let the prosecutrix leave, and she stated that Spencer was very angry and that the two of them circled several blocks looking for her; that on their return to the apartment, Spencer “tore into me”, striking her for permitting Mrs. May to leave.

Spencer admitted intercourse, but said it was voluntary on the part of Mrs. May. Appellant, of course, argues that there was no rape, Mrs. May consenting, and it is vigorously contended that she had opportunities to mention her predicament to others (at the store and on the street) and that this establishes that no rape was committed. We do not agree. The matters mentioned, of course, were facts to be argued to the jury, -including the failure to make outcry, but the jury was the sole judge of the credibility of the witnesses and it was within its province to believe or disbelieve the witnesses, and to determine whether Mrs. May was acting under-duress and fear during the period of time that she was with the appellant and the others. In other words, there is no evidence in the case that establishes, as a matter of law, that no rape was committed. If the jury believed Mrs. May, the testimony was sufficient for conviction. We have said many times that corroboration is not necessary in a rape case. Harrison v. State, 222 Ark. 773, 262 S.W.2d 907, and cases cited therein. For that matter, as previously pointed out, there was, to a degree, corroboration of the testimony of the witness by Angie Roberts.

Appellant offered the following instruction:

“You are instructed that force is an essential element in any crime of Rape and- it must be committed forcibly and against the will of the female. It is not the persistence with which the party accused intended to prosecute his alleged illegal design, but the force actually used that is the element in the crime of Rape.
“Before you can find this defendant guilty of the crime of Rape, you must find that the prosecutrix was actually under the influence of such alleged force at the time the act was committed. If there is a reasonable doubt, then you must acquit the defendant.”

The court refused to give this instruction, stating that it was incorrect. We agree. The phrase, “It is not the persistence with which the party accused intended to prosecute his alleged illegal design, but the force actually used that is the element in the crime of Rape” is incorrect, for this implies that the force must take place at the moment of the criminal act. As long ago as 1878, this court, in Bradley v. State, 32 Ark. 704, said:

“It is often a matter of great difficulty in trials for rape, and of assaults with intent to commit rape, to determine whether the act complained of was done with or without force, and whether with or without the consent of the party complaining, and this arises from the peculiar character and surroundings of the offense charged.
“Force is an essential element in the crime of rape. The term is general, and in its application the quantum of force is not to be taken into consideration, provided the act be consummated against the will of the female[Our emphasis.]

Aside from that, appellant’s theory was completely covered by other instructions given by the court. For instance, appellant’s Requested Instruction No. 1, which was given, states:

“You are instructed that before you can find this defendant guilty of the crime of Rape, you must first be convinced beyond a reasonable doubt that there was in fact forcible compulsion upon the alleged victim, and that the said alleged act of sexual intercourse was without her consent.
“If you should find that there was no forcible compulsion on the part of the defendant, then you should find the defendant not guilty.”

Appellant’s Requested Instruction No. 3, given, reads as follows:

“While it is not essential that the prosecutrix make an outcry either before or after the alleged act is committed, you are instructed that the failure of the prosecutrix to make an outcry or to make it known to other persons or strangers that she has been the victim of a Rape, should be considered together with all facts and circumstances as tending to show a want pf resistance.”

Appellant’s Requested Instruction No. 4, also given, told the jury that it had a right to consider the subsequent silence of the prosecutrix as bearing on the question of whether or not she consented to the act of intercourse.

The State’s Requested Instruction No. 1 was amended after objection of appellant, and given as follows:

“The defendant in this case is accused of the crime of Rape in the First Degree. First Degree Rape is the carnal knowledge of a female forcibly and against her will. A male is guilty of rape in the first degree when he engages in sexual intercourse with a female by forcible compulsion;
“If you find beyond a reasonable doubt that the defendant in this County and State, sometime before the filing of this information, did have carnal knowledge or actually penetrated the private parts of the proseeudng witness with his private parts, and that this was done by forcible compulsion and against her will, he is guilty of First Degree Rape.
“Now with regard to the force used, it may be violence or it may be putting the woman in fear, physically or mentally. In other words, the test is— was it against the will of the party upon whom the act was committed.”

These instructions certainly covered the law relative to the offense charged and there can be no legitimate complaint that the jury was not properly instructed.

Affirmed.


author: George Rose Smith, Justice.

text:
    Chester KING Sr v. Clyde LOVELL, Jr. et ux
    73-106
    499 S.W. 2d 859
    Opinion delivered October 15, 1973
    /. Harrod Berry, for appellant.

      Matthews, Purtle, Osterloh ir Weber, for appellees.
   George Rose Smith, Justice.

The outcome of this litigation between neighbors turns upon whether Tread-way Road, in Pulaski county, is a public road or a private road. The chancellor found it to be private and entered a decree allowing the appellees to maintain at its entrance a sign reading: “Private Road — Use Only By Permission or Right.” The appellant insists that Treadway Road is actually a public road and that therefore the sign should be taken down.

The road in question, only 669 feet long, runs north from Faulkner Road, an east-west county road. The appellees’ property is on the west side of Tread-way Road, a little more than 200 feet north of Faulkner Road. The appellant’s property lies slightly -farther to the north and about 500 feet east of Treadway Road. For a number of years Treadway Road has provided access to the houses owned and occupied by the parties.

In 1967 the appellant King and three other landowners brought this suit to enjoin various defendants from obstructing Treadway Road. The appellee Lovell, joined as a defendant, filed an answer asserting that Treadway Road was in fact a private driveway in which the plaintiffs had no “rights of egress and ingress.” The appellant King, as a plaintiff, then filed a reply stating that “in truth and in fact the-said Treadway Road is a private driveway, and plaintiff [King] has no rights arising by virtue of prescription.” Apparently the other three plaintiffs did not join in King’s concession that the road was a private driveway.

On March 18, 1968, the chancellor entered a decree dismissing the suit as to Lovell’s codefendants and making this finding with respect to Lovell and King: “That under the evidence in this case the defendant, Clyde Lovell, Jr., should be permanently restrained and enjoined from interfering with the use by Chester King, Sr., (and his successors in title) of the road known as Treadway Road as a means of egress and ingress from and to his property to and from Faulkner Road, and he is hereby -so restrained from interfering with such use.” There was no appeal from that decree.

In 1972 King filed the present petition, asserting that Lovell was interfering with King’s use of Tread-way Road and asking that Lovell be held in contempt of court and be enjoined from further interference with King’s rights. At a hearing the parties introduced testimony -bearing upon the public or private character of Treadway Road. The chancellor, as we have said, found the road to be a private one and permitted the Lovells to erect a sign so stating.

We agree with the chancellor. In the first place, the 1968 decree appears to be conclusive as between King and Lovell. The binding effect of a judgment is to be determined by the pleadings as well as by the judgment itself. Webb v. Herpin, 217 Ark. 826, 233 S.W. 2d 385 (1950). Here both King and Lovell had filed pleadings averring that Treadway Road was a private driveway. The chancellor evidently adopted that view, because the decree recognized king’s rights in the road only as a means of egress and ingress from and to his property. That limitation in the decree is not in harmony with King’s present assertion that Treadway Road is a public thoroughfare in which he has unlimited rights.

In the second place, the chancellor again found, in the supplementary decree now before us, that Tread-way 4s a private road. That finding is not contrary to the weight of the evidence. The fee title to the strip occupied by the road is privately owned. There has been no formal dedication of a right of way to the public. It does not clearly appear that the road has been used by the public in general other than as a means of access to a few homes in the vicinity. Such a restricted user could be regarded as giving rise to a private easement rather than to a public one. See Barbee v. Carpenter, 223 Ark. 660, 267 S.W. 2d 768 (1954). Although certain witnesses living on Lawson Road testified that they used Treadway Road as a means of access to the upper Hot Springs highway, the relationship of the three roads to one another -is so inadequately described that we are unable to follow the appellant’s argument in this respect. Upon the record as a whole the decree does not clearly appear to be against the preponderance of the proof.

Affirmed.


author: Lyle Brown, Justice.

text:
    Bill WADE v. Cleo MOODY, county judge et al
    5-6228
    500 S.W. 2d 593
    Opinion delivered October 15, 1973
    [Rehearing denied November 19, 1973.]

      Bob Scott and Robert D. Smith III, for appellant.

      Jim Guy Tucker, Atty. Gen. by: Lonnie A. Powers, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

A complaint was filed in the Lawrence County Chancery Court by Cleo Moody, County Judge, and David Hodges, Prosecuting Attorney, who are the appellees. By their complaint they sought to enjoin the appellant, Bill Wade, from interfering with the use of a road by the public. Appellant was so enjoined and hence this appeal. The issues joined on appeal concern (1) whether the court should have dismissed the complaint, (2) whether it was proper for the trial court to strike the testimony of one of the witnesses, (3) whether it was proved that the road was used by the public adversely to the rights of the landowner, and (4) whether the public had abandoned the use of the road.

The road in dispute was designated by the witnesses as Ridge Route Road. It runs roughly north and south and is said to be approximately three and one-half miles long. It is not a part of the county road system. It connects on each end with east and west roads which are a part of the county road system. A substantial portion of the road traverses lands owned by appellant. The record in this case consists of approximately 1000 pages of testimony introduced by 52 witnesses, and a multitude of maps and pictures. The abstract of the testimony consists of 119 pages. A recount in this opinion of the substance of all testimony of all witnesses will not be made for obvious reasons. We shall later refer to some of the evidence as we resolve those points wherein the evidence is relevant.

Appellant first contends that his motion to dismiss' the case should have been granted because it was not brought in the name of the State of Arkansas. He refers us to Ark. Stat. Ann. § 17-302 (Repl. 1968). It is there provided that actions by counties may be brought in the name of the state for the use of the county. The motion was oral and out of time. It was made on the morning of the trial and, of course, after the case had been set for trial. See Rule 2, Uniform Rules for Circuit and Chancery Courts, March 1, 1969. Furthermore, the court’s refusal to consider the oral and untimely motion suggests no prejudice to appellant; in fact the motion went to a matter of form rather than substance.

Appellant next contends the court erred in striking the testimony of Donna Lee Bacon. The case was tried intermittently over a period of months. The rule on the witnesses was invoked at the beginning of the trial. Mrs. Bacon was asked by appellant to come to the trial a week prior to her testimony. The court questioned the witness when her testimony was challenged on ¡ the ground that she had not been in the witness room. She conceded that she had been told by appellant and his wife, in general, what previous witnesses had testified, and more particularly that the appellees’ witnesses had testified that the old road had existed for many years. We have grave misgivings about the ruling of the court under the circumstances, however Mrs. Bacon’s testimony was placed in the record and it is very clear that it was cumulative to the testimony of a number of other appellant witnesses. It was particularly similar to the testimony of her father, Leland Kille-brew. We are unable to say the appellant was prejudiced.

The third of appellant’s contentions is that the trial court should have ruled as a matter of law that appellees had failed to prove that the road was used by the public adversely to the rights of appellant. One of our leading cases on this point is Fullenwider v. Kitchens, 223 Ark. 442, 266 S.W. 2d 281 (1954). There it is stated: “All our opinions are in harmony on one point, viz.: Where there is usage of a passageway over land, whether it began by permission or otherwise, if that usage continues openly for seven years after the landowner has actual knowledge that the usage is adverse to his interest or where the usage continues for seven years after the facts and circumstances of the prior usage are such that the landowner would be presumed to know the usage was adverse, then such usage ripens into an absolute right”.

Witness Robert Taylof, 84 years of age, said he had lived on the south edge of Ridge Route Road for the past 60 years. He said the road went north to Woodrow Bratcher’s cabin, then on north to Gilbert Sand-ford’s home, thence further north to Virgil Brown’s home and there it joins an east and west public road; that the county grades Ridge Route Road and has done so since 1962; and that people have traveled the road over the past sixty years. He related that at one time there was a church on the road.

John Bratcher testified that his father owned the Wade lands before the latter bought them; that he was thoroughly familiar with Ridge Route Road and that it had been there for many years; that he bladed the road for the county in 1962; that the road was widened in 1965 by a man hired by the county; and that some twelve years ago appellant cut some trees across the road but the witness and some other men removed them within a week.

Robert Smith testified that he had been familiar with the road since the late thirdes and that it generally follows the same route as always. He said that sometimes he used the road two or three times a year and at other times he would skip four or five years before going back. He said sometimes a car could not use the road because of the weather.

Witness Ed Bilbrey, 63 years of age, said he had been familiar with the road for about 50 years; that he had used it from one to twenty times a year; that the public used the road unobstructed except for the short period when appellant constructed the gate.

Ed Bilbrey, Jr., said he had been familiar with the road since 1957 and since that time had traveled it two or three times a year.

Witness Dot Foley lives within a mile of Robert Taylor’s house. He said that for the most part the road was used by people fishing and hunting and by the few people living in the area of the road. He said the road was on approximately the same roadbed it was during the last fifty-four years.

Witness Bill Flippo is employed by the Game and Fish Commission and covers the area in question. He said he had traveled Ridge Route Road continuously for the past twenty-one years, mostly checking on hunters. He conceded that Mr. Brown had a cattle guard at his end of the road on the north but said he had never seen a gate at the north entrance. He said at one time there was a logging operation near the road and that fact made it difficult to get through with a car or truck.

Witness Leslie Clements said he first went over the road in 1923 and continued to travel it regularly until about 1950; that his travels since that time have been restricted to hunting. He said the road starts on the south at Mr. Taylor’s house and comes out on the north at Mr. Brown’s house and has been approximately in the same position, although slightly varied in spots.

Virgil Brown lives at the north end of the road and has known about Ridge Route Road since 1960. The public entered his unlocked gate to use the road. The ■road ended at Mr. Taylor’s house.

Cebe Burrough said he . had been familiar' with the road for the past seventeen years and used the road on an average of three times a year. “The road has always been passable and people went through there, but in the winter time it would get real bad where you couldn’t hardly get through there at all in a car.”

Witness Earl Rorex is 68 years of age and a game warden. “I have beep traveling Ridge Route Road for the last 25 or 30 years when I was a game warden and used the road so that I could check on hunters and fishermen in the area.”

We could continue to recite the testimony of a number of other witnesses who used the road. The other evidence of appellees’ witnesses, both on direct and then on rebuttal (eleven in number), follows generally along the lines of identification and use as related by the witnesses from whom we have recited. This does not mean that all the evidence favored appellees. In fact appellant produced some seventeen witnesses to sustain his position. However, we have weighed the evidence and we are unable to say that the finding of the chancellor was against the preponderance of the evidence. The point is, we conclude that the evidence preponderantly establishes public úse for such a time as to bring into play the rule enunciated by Fullen-wider, namely, that the usage was so. long as to ripen into an absolute right.

Finally, it is argued that there was insufficient evidence to support the court’s finding that the road had not been abandoned. Again, this is a fact question. We shall. not abstract the evidence on the point, some of which was concededly offered by both sides. The essential testimony which sustain^ the finding of the chancellor is that of Robert Taylor, who said people haye traveled Ridge Route Road “to the open road over the last sixty years”, and that the road has been under care of the county for eight years. There was evidence obstructions placed in the road by appellant had been shortly removed (even the gate had been taken down). Then there was the testimony of Woodrow Bratcher, who testified that since 1962 he had annually graded and dozed the road; and finally, there was evidence that some federal governmental agency had worked on part of the road. On the whole, we are unable to say the chancellor erred in finding no abandonment. Furthermore, the burden of establishing abandonment was on appellant. Once color of title was established by adverse possession, it became incumbent on appellant to show abandonment. Wilson v. Spring, 38 Ark. 181 (1881).

Affirmed.


text:
    Nathaniel BARKSDALE v. STATE of Arkansas
    CR 73-95
    499 S.W. 2d 851
    Opinion delivered October 15, 1973

      Robert F. Morehead, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Philip M. Wilson, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

This is an appeal from a robbery conviction. Appellant advances five points for reversal. We find them to be without merit.

In January 1973, a neighborhood grocery in Pine Bluff was robbed by two men. City Officer Bobby Simmons happened to be patroling in the area at about the time of the robbery and heard a report of the incident over his radio. He spotted appellant and another man walking across the school grounds and radioed for help. Officer Keintz answered the call and when he arrived the two men were running across a field. Appellant and his companion were apprehended. A brown bag containing money was found along the trail used by the two men. Appellant gave the officers a fictitious name. The victim of the robbery shortly went to police headquarters and identified appellant as the man who held the gun on him. The argument of appellant that the evidence does not support the verdict has no validity.

Appellant says the court erred in denying his motion for a continuance. On the morning set for the trial appellant moved for a continuance to enable him to get another lawyer. He told the court that the two lawyers defending him and his codefendant were not familiar enough with the case and that “he just did not want them”. This was the first knowledge the court or appellant’s attorneys had that such a motion would be made. The attorneys conceded that they were ready to try the case. One of the attorneys complained that appellant had not paid his fee but the court advised that the fee would be paid by the county. In denying the motion for continuance the court said: “The jury is here, you have had ample time to notify the Court and if we were to permit a man to come into court every time his case is set for trial and discharge his attorneys we never would try anybody”. The court certainly did not abuse its discretion. Hill v. State, 250 Ark. 812, 467 S.W. 2d 179 (1971).

The court properly denied appellant’s motion for a mistrial on the grounds that he was wearing prison garb. The record shows that appellant was wearing bell-bottom white trousers, a gold shirt, a white and brown striped jacket, and house shoes. There was no evidence of any name or number on the apparel.' Nor do we find any merit in the allegation that appellant was brought handcuffed in full view of the jury. The record shows that appellant was handcuffed but the cuffs were taken off outside the doorway of the courtroom. In the first place, there is no showing that any prospective juror saw the appellant so shackled. Secondly, the officers had a right to take such precautions as would be reasonably necessary to prevent an escape. Rayburn v. State, 200 Ark. 914, 141 S.W. 2d 532 (1940). Appellant was brought to Pine Bluff from the penitentiary for trial; also, there was proof on behalf of the state that appellant was unusually belligerent.

In the course of examining Officer Worley, a witness for the State, the prosecutor asked Worley if he had questioned the defendant. Worley replied in the affirmative. At that point the court inquired if the prosecutor planned on introducing a statement, to which the prosecutor replied in the affirmative. The officer proceeded to say that appellant gave the name of Leroy Williams and that ap-’ pellant desired not to make any further statement. Appellant here contends that the prosecutor was erroneously indicating to the jury that he had a written statement, which in fact he did not have. The point is hardly in the category of being rational. The officer said appellant made the statement that his name was Leroy Williams; then, almost in the same breath, the, officer said appellant declined to make any further statement. Certainly the jury was not misled. When appellant took the stand he admitted to having given the. officer a fictitious1 name.

Affirmed.