author: J. Fred Jones, Justice.

text:
    STATE FARM GENERAL INSURANCE COMPANY of Bloomington, Illinois v. Zeefer CHAMBERS, now Zeefer SMITH
    76-115
    543 S.W. 2d 470
    Opinion delivered November 15, 1976
    [Rehearing denied December 13, 1976.]

      Crduch, Blair, Cyperl & Waters, for appellant.

      Robert S. Blatt, for appellee.
   J. Fred Jones, Justice.

This is an appeal by State Farm General Insurance Company of Bloomington, Illinois, from an adverse decision of the Johnson County Circuit Court in a suit brought by the appellee Zeefer Chambers, now Zeefer Smith, to recover on a Fire insurance policy covering a house trailer.

The facts appear as follows: In October, 1972, the appellee purchased a house trailer in Oklahoma and in March, 1973, she insured same against loss by fire with the appellant insurance company. In February, 1973, the appellee moved the house trailer to a trailer court at Lowell, Arkansas, where she occupied it with her two sons. In December, 1973, the appellee married Mr. Clyde Smith who lived in Johnson County, Arkansas. Upon her marriage to Smith she vacated the house trailer and moved to Johnson County with Mr. Smith. On March 22, 1974, she paid a renewal premium on the insurance.

A Mrs. Lois Donovan managed the trailer court at Lowell where the appellee’s trailer was set up, and in January, 1974, as an accommodation to Mrs. Smith, she rented the trailer to a Mrs. Phillips. Mrs. Donovan collected the rent payments and remitted to the appellee. Mrs. Phillips lived in the trailer until March 25, 1974, when it was destroyed by Fire. The appellee made claim against the appellant for payment under the policy and the claim was denied because of a provision in the policy which, in pertinent part, reads as follows:

This Company shall not be liable under Section 1 of this policy:
* * *
3. While the mobile home is rented to others for a period in excess of 60 days, except that it is permissible to rent a portion of the mobile home which is occupied by an insured to not more than two roomers or boarders.

It is clear from the evidence in this case that the trailer was rented to Mrs. Phillips on January 19, 1974, and that she continuously occupied it as a tenant until March 25, 1974, when the fire loss occurred. It is, therefore, clear from the evidence that the loss here involved occurred while the mobile home was rented to others for a period in excess of 60 days and clearly fell within the exclusionary provision as above set out.

The trial court, however, over the objections of the appellant, gave appellee’s instruction No. 3 as amended. The appellee requested instruction No. 3 as follows:

You are instructed that the renewal of the insurance contract on March 24, 1974, was a separate and distinct contract between Mrs. Smith and State Farm Insurance Company.

The court gave the instruction as follows:

You are instructed that the renewal of the insurance contract on March 24, 1974, if you so find, was a separate and distinct contract between Mrs. Smith and State Farm Insurance Company.

We are of the opinion that the trial court erred in giving this instruction.

The insurance policy here involved was dated April 25, 1973, and was for a 12-month period from March 24, 1973, to March 24, 1974. The policy contained a provision as follows:

This policy will be renewed automatically subject to provisions of the forms then current, for each succeeding policy period thereafter and is subject to termination by this company only after ten (10) days’ written notice to insured and lienholder the premium for succeeding policy periods will be computed at this company’s rates then current.

The appellee’s attorney took full advantage of the court’s instruction in his closing argument to the jury as follows:

The Court has instructed you and I will read what he said:
“You are instructed that the renewal of the insurance contract on March 24, 1974, if you so find, was a separate and distinct contract between Mrs. Smith and State Farm General Insurance Company.
Now, Your Honor has told you that that’s the law. That that’s a separate contract. Therefore, I submit to you that when she renewed this policy that she gets another 60 days, just like she got when she first took this policy out.

It was entirely proper for the appellee’s attorney to argue as above set out under the instruction given, but the trial court erred in giving the instruction under the uncontroverted evidence in this case. The contract here involved was not a new and separate contract. No new policy was issued and no new contract was entered into or involved. The old and only insurance contract was simply extended for an additional year by the payment of the premium for the ensuing year as plainly provided in the face of the policy. The original policy was kept in force by automatic renewal upon the payment of premium for the ensuing year; it had not lapsed nor was it subject to cancellation until after ten days’ written notice as provided in the very first provision of the policy, supra.

The appellee relies heavily on our decision in Home Mut. Fire Ins. Co. v. Pierce, 240 Ark. 865, 402 S.W. 2d 672, but the case at bar is clearly distinguishable from the Pierce case on the facts. In Pierce the insured was engaged in livestock and poultry production conducted on four separate farms. Prior to December 23, 1964, the appellant insurance company had issued a separate policy of insurance on dwellings and other named structures on each of the four farms. In December, 1964, a new five-year policy was written consolidating the coverage as to the four farms and on December 31, 1964, an endorsement was placed on the new policy increasing some of the coverage. The coverage on the equipment in the brooder house was increased from $5,000 to $6,000. Under the new policy a brooder house on one of the farms was insured for $10,000 against loss by fire and, as above stated, the equipment and supplies therein were insured for $6,000. A dwelling house on the same farm was occupied by a tenant who, well-known to the agent writing the insurance, attended to swine production on the farm and had nothing whatever to do with the brooder house operation. Prior to issuing the new policy, the tenant moved from the dwelling house and it remained vacant for more than 30 days before the brooder house and equipment were destroyed by fire on January 12, 1965. The new policy contained a provision reading as follows:

Unless otherwise provided by agreement in writing added hereto, this Company shall not be liable for loss or damage occurring. . . . (f) while a described building whether intended for occupancy by owner or tenant, is vacant or unoccupied beyond a period of thirty days.

And the endorsement thereon contained an “otherwise provision” reading as follows:

In consideration of the waiver of additional premium for increased hazard by reason of vacancy or unoccupancy, permission is hereby given for dwelling insured under this policy to become or remain vacant or unoccupied for periods in excess of thirty days, provided that in case any dwelling is damaged or destroyed by fire during such vacancy or unoccupancy in excess of thirty days this company shall not be liable to pay or make good to the insured in excess of two-thirds of the amount of insurance covering such dwelling.

When claim was made for the full loss coverage on the brooder house and equipment, the insurance company contended that it was. not liable under the policy for more than two-thirds of the amount of coverage on the brooder house under the above endorsement. The trial court rendered judgment for the full amount of coverage and we affirmed-

The question in Pierce, supra, was whether the vacancy endorsement on the separately insured dwelling house extended to coverage on the separately insured brooder house and we agreed with the trial court that it did not. We agree with the appellant in the case at bar, that the sole question before the trial court and before this court on appeal is whether the premium payment of March 24, 1974, constituted a new and separate contract which prevented the application of the 60-day rental period from running under the exclusionary provision. Upon the payment of the renewal premium in the case at bar the policy was automatically renewed under its terms and nothing was added to or taken from the terms of the policy. In other words, it remained the same identical contract without alteration.

The case of Aetna Ins. Co. v. Short, 124 Ark. 505, 187 S.W. 657 (1916), involved an oral renewal of a fire insurance policy and in that case we said:

The terms of the policy are neither enlarged, restricted or changed by the renewal but the rights of both parties, no matter how often a policy of insurance may have been renewed, are still bound by the provisions of the policy as originally issued. Witherell v. Maine Insurance Company, 49 Maine 200; Aurora Fire & Marine Ins. Co. v. Kranich, 36 Mich. 289; Hartford Fire Ins. Co. v. Walsh, 54 Ill. 164. Therefore, the court did not err in refusing to instruct the jury that the renewal contract must be established by clear and convincing testimony and that the burden was upon the plaintiff to establish that fact by clear preponderance of the evidence.

In Couch on Insurance 2d, vol. 17, § 68:42, is found the following statement:

The rule has thus been declared that a renewal of a fire policy by the payment of a new premium and the issuance of a receipt therefor, where there is no provision in the policy for its renewal, is a new contract on the same terms as the old, but that where the renewal is in pursuance of a provision to that effeci it is not a new contract but an extension of the old. (Italics supplied.)

Citing Lewis v. Western Assur. Co., 175 Tenn. 37, 130 S.W. 2d 982.

The Lewis case, thus cited, involved Fire loss insurance on a dwelling house. Under a Tennessee statute, recovery on a Fire insurance policy was limited to the actual value of the loss where inspection of the property was made within 90 days after issuance of the policy. Where such inspection was not made, the policy became a valued policy for the face amount recited in the policy. A dwelling house was involved in Lewis and it was insured for a period of one year for $1,000 and no inspection was made. The policy was renewed at the end of the year by the issuance of a new and separate policy containing the same provisions as the First policy. The house was totally destroyed by lire less than two months after the issuance of the renewal policy. The insured claimed the face value of $1,000 and the insurance company resisted because the property had not been inspected and the 90-day period for such inspection had not expired under the renewal policy. The trial court held that the new policy was an extension of the old policy and that the 90-day inspection period ran from the issuance of the first policy. In affirming the trial court the Supreme Court of Tennessee said:

The renewal a year later, under the express terms of the original policy, had the effect of extending the original contract for another year. The situation was the same as though the policy had been issued originally for two years, in which event defendant, so far as value was concerned, had ninety days from the date of issuance to inspect.

The court then quoted from 27 C.J., page 111, as follows:

“The renewal receipt is more than a mere receipt for money; it is evidence of a contract. But it is an extension of the original policy, and not a substitute therefor.”

The Tennessee Court further quoted from 14 R.C.L., pages 889-890, as follows:

“A renewal of insurance by the payment of a new premium and the issuance of a receipt therefor, there being no provision in the policy for its renewal, is a new contract on the same terms as the old, but where the renewal is in pursuance of a provision to that effect it is not a new contract but an extension of the old.”

In 44 C.J.S., Insurance, § 285, is found the following:

Where the renewal agreement so recites, or unless it provides otherwise, the terms and conditions of the existing policy are not changed, enlarged, or restricted by a renewal but are merely continued in force as binding on the parties; and an agreement to renew, in the absence of expressions to the contrary, is presumed to contemplate the same terms and conditions as the existing insurance, the only change being the time of its expiration.

In the case of New York Life Ins. Co. v. Campbell, 191 Ark. 54, 83 S.W. 2d 542, a lapsed policy was reinstated under provision in the policy providing:

This policy may be reinstated at any time within five years after default upon written application by the insured and presentation at the home office of evidence of insurability acceptable to the company, and upon payment of overdue premiums, with six per cent interest thereon from their due date.

The policy involved was issued in 1928; it was reissued with a change of beneficiary on February 4, 1932, and expressly provided that it would take effect as of the 19th day of November, 1928 (the anniversary date of the policy). The policy lapsed for nonpayment of premium on March 19, 1932, and on March 29, 1932, the insured made written application for reinstatement which was granted on March 30, 1932, and the policy was reinstated. The policy contained a two-year incontestable clause. About. September 10, 1933, the insured suffered a stroke and so advised the insurance company, who filed a petition in chancery to cancel the policy because its reinstatement was produced by fraud. The insured stated in his application for reinstatement that his health and physical condition were in the same state as they were when the original policy was issued in 1928, and that he had had no past illness, injury or disease, nor had he been treated by or consulted a physician within two years last past. A doctor testified that he had treated the insured from October 2, 1931, until February 1, 1932, and had diagnosed the appellee’s condition as chronic nephritis. In upholding the chancellor’s denial of the petition for cancellation, this court said:

It necessarily follows from what we have said, and the cases cited in support thereof that the reinstatement of the insured by appellant created no new contract between them, but simply revives and reinstates the original contract and all provisions thereof, and subsequently the rights and obligations of the respective parties thereto must be measured thereby.

See: Munn v. Robinson, 92 F. Supp. 60, affirmed in John Hancock Mul. Life Ins. Co. of Mass. v. Munn, 188 F. 2d 1; see also New York Life Ins. Co. v. Dandridge, 202 Ark. 112, 149 S.W. 2d 45, 134 A.L.R. 1519.

In Life & Cas. Ins. Co. of Tenn. v. McCray, 187 Ark. 49, 58 S.W. 2d 199, a life insurance policy was involved which contained a provision against suicide as follows:

If, within one year from the date of issue of this policy, the insured shall, whether sane or insane, die by his own hand, the liability of the company shall be limited to the amount of the premiums paid hereon.

The policy also contained a provision for reinstatement after lapse by the payment of premiums and production of evidence of insurability satisfactory to the company. The premium on May 1, 1931, was not paid when due nor within the period of grace, but on August 1, 1931, the policy was reinstated. Thereafter, on May 10, 1932, more than one year from the date of the policy, but less than one year from the date of reinstatement, the insured committed suicide. In the suit on the policy the insurance company contended that the one year suicide clause ran from the date of the reinstatement of the policy and not from the date of the policy itself. In affirming the trial court this court said:

We do not understand there was ever but one policy, and it bore date of November 3, 1930. Certainly there was never but one policy issued by appellant to insured. It lapsed and became void after 30 days, from May 1, 1931, until August 1, 1931, during which time there was no insurance, but on the latter date the very same policy, not a new or different one, was reinstated by the payment of all delinquent premiums and furnishing evidence of insurability satisfactory to appellant. There is no room for the contention that any new or different contract or policy was in force after reinstatement.

The policy involved in the case at bar, by its plain and unambiguous terms, provided for automatic renewal for an additional year upon payment of the premium for the ensuing year. We are forced to the conclusion that the renewal here involved was not a new contract and the trial court erred in instruction to the jury that it was.

The judgment is reversed and the cause dismissed.

We agree: Harris, C.J., and George Rose Smith and Fog LEM an, JJ.


source: Caselaw Access Project

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

license: Public Domain

text:
    Charles C. HARRIS v. STATE of Arkansas
    CR 75-40
    543 S.W. 2d 459
    Opinion delivered November 15, 1976 (In Banc)

      Putman, Davis & Bassett, by: W. B. Putman and Ronald E. Bumpass, for appellant.
    Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

Charles C. Harris and Lonny McGuire were jointly charged, tried and convicted at a jury trial with the possesscon of marijuana with intent to deliver and were sentenced to ten years in the penitentiary. This is an appeal by Harris in which he has designated two points he relies on for reversal as follows:

I
The lower court erred in refusing to grant appellant’s motion for a severance because:
A. Voir dire by separate counsel for Appellant’s co-defendant and the remarks of the Trial Court deprived Appellant of his option as to whether or not his failure to take the stand would be brought to the attention of the jury.
B. Testimony by a State’s witness as to statements made by the co-defendant tended to incriminate Appellant in violation of his rights under the Sixth Amendment to the Constitution of the United States.
II
The lower court erred in refusing to grant a mistrial because of the state’s comment in closing argument on the failure of appellant to take the witness stand.

The facts appear as follows: James R. Adkins, special agent for the Federal Drug Enforcement Administration, while working, under cover, made arrangements with Harris and McGuire for the purchase of 100 pounds or marijuana for $10,000. Delivery was made on the highway outside the corporate limits of Fayetteville resulting in the arrests and subsequent convictions of Harris and McGuire.

Harris and McGuire were represented at the trial by separate attorneys. The appellant Harris’s attorney filed a motion for severance on the ground that he anticipated the state’s witnesses would quote statements made to them by McGuire which would tend to incriminate Harris; and that to deny the motion for severance would deny Harris the protection afforded him under the Sixth Amendment to the Constitution, the right to be confronted by witnesses, and the right to cross-examination. The motion was denied by the trial court.

The errors assigned under point I-A pertain to the voir dire examination of three prospective jurors, Van Duesen, Miller and Shepherd by McGuire’s attorney, Mr. Carlisle. The entire record on this point appears as follows:

MR. CARLISLE: Q. I will not belabor this, but there is one matter I would like to inquire about. Mr. Putman has, in general terms, described that when a defendant walks into this courtroom he is, first of all, presumed to be innocent, and until such time as the State proves beyond a reasonable doubt all of the elements of the offense with which he has been charged he is presumed innocent. As you know, I represent Lonny McGuire. In your deliberations would any of you give any weight to the fact that a defendant did not take the witness stand in his own behalf as any circumstance against him? The laws of the State of Arkansas say that a defendant is not required to take the witness stand; that the burden is upon the State of Arkansas to prove him guilty beyond a reasonable doubt. Now, some people have a little bit of difficulty in understanding that the fact that a defendant does not speak in his own behalf should not be held against him, and, in fact, go the other way and say to themselves, “Well, he didn’t get on the witness stand and deny it, so that is some inference of guilt.” That last statement is incorrect under the law and I want to see how you all feel about it. Do you follow my thought?
MRS. VAN DUESEN: Yes.
MRS. MILLER: (She nods her head affirmatively.)
MR. SHEPHERD: (He nods his head affirmatively.)
Q, How about you, Mr. Shepherd? Would you hold it against the defendants in this case if one or both of them did not take the witness stand? Would that infer to you in any way their guilt?
MR. SHEPHERD: No.
Q. How about you, Mrs. Van Duesen?
MRS. VAN DUESEN: No, I don’t think so.
Q. Mrs. Miller?
MRS. MILLER: No.
Q. And the testimony offered by the State of Arkansas in this case will primarily come from three (3) Federal Agents who will identify themselves as law enforcement officers of the United States Government, in the Federal Bureau of Narcotics. Do either of you have any tendencies to believe a witness merely because he happens to be a policeman?
MR. SHEPHERD: No.
MRS. VAN DUESEN: Not necessarily.
MRS. MILLER: (She shakes her head negatively.)
Q. It is sometimes felt that just because a man works in a law enforcement capacity or is a policeman, whatever you want to call it — of course these men are non-uniformed and proof will show they were undercover agents, commonly referred to as “nares,” but they are policemen and some people think that policemen should always be believed, regardless of the circumstances.
MR. GIBSON: Your Honor, I am going to interpose an objection. This is argument.
THE COURT: I believe that it is argument. Rephrase your question.
MR. CARLISLE: I haven’t asked the question, Your Honor.
THE COURT: I know, but I think you should limit it to a direct question.
MR. CARLISLE: Q. The mere fact that these three (3) gentlemen are law enforcement officers, would that give you any reason to give their testimony more weight than vou would any other witness?
MR. SHEPHERD: (He shakes his head negatively.)
THE COURT: Let me ask it this way. I am going to tell you that any witness on the stand should be treated the same, as far as evaluation of his testimony, regardless of his sex, color, age or religion.
MRS. VAN DUESEN: Yes, we understand.
THE COURT: You shouldn’t believe him or disbelieve him because he is a police officer, or if he is the defendant and takes the stand. You shouldn’t arbitrarily believe him or disbelieve him. In other words, the same set of criteria is applied to any witness regardless of occupation, sex, creed or color.
MR. CARLISLE: Q. My question is —
THE COURT: Can you follow that?
All three answer: Yes.
MR. CARLISLE: Q. Can you follow the Court’s instruction?
All three answer: Yes.
THE COURT: Are they acceptable?
MR. GIBSON: Yes.
THE COURT: Are they acceptable, Mr. Putman?
MR. CARLISLE: Your Honor, I will excuse Mr. Shepherd.
THE COURT: Mr. Putman, are they acceptable to you?
MR. PUTMAN: Yes, Your Honor, the other jurors are acceptable.
THE COURT: All right. Call one more name.
(The Court proceeds to interrogate the next three (3) jurors. Mr. Putman approaches the bench.)
THE COURT: Do you have an objection?
MR. PUTMAN: No, Your Honor, I have no objection. I simply have another matter that I want to take up with the Court at this juncture.
(Out of hearing of jurors:)
Comes now the defendant, Charles Harris, and renews his motion for a severance earlier made before this Court, which was of course taken down by the court reporter, for the reason that in his voir dire interrogation of the jurors, Mr. Carlisle has referred to the consequences and possible reactions of the jurors in the event that the defendant or a defendant did not take the stand. We have the option, of course — Mr. Harris is entitled to the opition of mentioning or not mentioning this to the jury, just as is given to him the option of having the Court mention or not mention the fact that he did or did not take the stand. This deprives us of this option because it has already been brought to the jurors’ attention. Their attention has already been drawn to the fact that the defendants or a defendant may not testify. We feel this deprives Mr. Harris of his option to leave this totally unmentioned throughout the trial, and consequently calls for severance.
THE COURT: Overruled.
MR. PUTMAN: Note our exceptions.
THE COURT: Please stand Mrs. Canup, Mrs. Collins and Mr. Fennell. (Emphasis supplied.)

As to the first part of the appellant’s assignment under point I-A, no objection was made to the voir dire at the time it was made and the appellant accepted the jurors without challenge. The appellant has demonstrated no adverse or antagonistic interest between himself and his codefendant that would have demanded a severance. See Lewis and Wren v. State, 220 Ark. 914, 251 S.W. 2d 490. We conclude that under the state of the record before us, the trial court did not abuse its discretion in refusing to grant the appellant’s motion for a severance because of the questions propounded by McGuire’s attorney on voir dire. To hold otherwise would make it possible to force a severance in every case, as a matter of trial strategy, where codefendants are represented by separate attorneys.

The second portion of appellant’s point I-A pertaining to the remarks of the trial court related back to the voir dire of the three prospective jurors. The record is not clear as to whether the entire jury panel was in the courtroom when these jurors were being questioned on voir dire. It would appear, however, that the entire panel was in the jury room and were being called three at a time for voir dire. In any event, it appears to us that when the trial court held attorney Carlisle’s interrogation as argumentative and directed him to rephrase his inquiry by asking a direct question, the trial court was eminently correct. We are of the opinion, however, that after attorney Carlisle did rephrase his inquiry as above set out, the question, as rephrased, should have been sufficient. After the prospective jurors to whom the question was propounded had indicated a negative answer, the trial court inquired in a different manner as above set out.

It might appear at first glance that the phrase “or if he is the defendant and takes the stand,” would not be a prejudicial comment on the appellant’s failure to testify in the context of all that was said; but, this statement could have planted in the minds of the jury that the testimony of federal narcotic agents was exactly of the quality and verity as that of the accused; and, that although they should not arbitrarily believe or disbelieve either witness because he is a defendant or a police officer, if the police officer testified and the defendant did not, they would be left with no discretion in not believing the police officer and that to do so would not be arbitrary.

This phrase “or if he is the defendant and takes the stand” might be considered nonprejudicial when considered in the context it was given if it were standing alone but such was not the case. During the testimony of the appellant’s mother who testified at some length as to appellant’s family background; as to his work with underprivileged children; as to adjustment problems he encountered following the death of his father, and as to her own efforts to assist this 25 year old appellant in solving his problems by sending him to visit a friend in Brazil; the record then appears as follows:

Q. Living with you in Houston, did he have an opportunity to see some of the Mexican-American children who were poor and had to live under deprived and—?
MR. GIBSON: Your Honor, I am going to have to object. He’s leading the witness. It’s second-hand knowledge—.
THE COURT: I think what he saw is for him to say, rather than what she knows about what he did.
MR. PUTMAN: I’m going to take exception to the Court’s remarks. (Emphasis supplied.)

The trial court apparently felt that the attorney was going rather far afield in questioning appellant’s mother about the opportunity the appellant had to see poor and deprived Mexican-American children while living with her in Houston and certainly we are of the opinion the trial court had no intention to suggest to the jury that the appellant should testify. But when the two statements, “if he is the defendant and takes the stand,” and, “what he saw is for him to say,” are considered together, we cannot say they were not prejudicial to the appellant. We must remember that this was the trial court speaking for the benefit of the jury.

The state’s .witnesses had very definitely connected the appellant with the wholesale delivery of contraband but it is entirely possible that the jury may have considered the evidence, pertaining to the poor and deprived Mexican-American children the appellant may have seen in Houston, very material in assessing the penalty in this case. The court’s two statements could have left the impression with the jury that even though the appellant was not required to testify in his defense, and even though that fact should not be held against him; if the appellant did desire to take the witness stand and testify his testimony, under the law as stated by the court, would be just as valid and carry as much weight as the testimony of anyone who testified against him and that it was incumbent upon him to testify rather than depend upon someone else’s knowledge and testimony as to what he did. We conclude that the judgment must be reversed and the cause remanded for a new trial.

We deem it unnecessary to discuss appellant’s point I-B because it is not likely to arise again on retrial and we find no merit to the appellant’s point II. That portion of the closing argument of the prosecuting attorney, as set out in the appellant’s argument under his point II, appears as follows:

Possession? You heard the three agents get on this stand and say that the hundred pounds of substance was taken from these two defendants out there on Cato Springs Road on April 29th, 1974. There has been absolutely no testimony to contradict that. I don’t think that is even an issue at this point. They possessed it; a hundred pounds — Approximately one hundred pounds—.

The appellant argues that that portion of the prosecuting attorney’s argument, as above italicized, constituted prejudicial comment upon appellant’s failure to testify, but we disagree with the appellant. See: Edens v. State, 235 Ark. 996, 363 S.W. 2d 923; Moore v. State, 244 Ark. 1197, 429 S.W. 2d 122 and compare with Curtis v. State, 89 Ark. 394, 117 S.W. 521.

The judgment is reversed and the cause remanded for a new trial.

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

John A. Fogleman, Justice,

dissenting. It seems to me that the majority, in reversing the trial court has lost sight of appellant’s point for reversal. It seems to me that the reversal is based upon the trial court’s comments, either as comments on the evidence or as comments on the defendant’s failure to testify, rather than upon the court’s failure to grant a severance. The majority properly finds no error in the voir dire examination by counsel for appellant’s co-defendant, as it related to the right of a defendant to refrain from testifying.

No objection was made by appellant to the court’s remarks relating to the credibility of witnesses. The court’s remarks were not specifically made the basis of the renewal of appellant’s motion for severance, which came after appellant had failed to challenge any juror so interrogated and had found two of them acceptable. When the court inquired of appellant’s attorney, he stated that he had no objection. I do not interpret the motion as having been directed to the court’s remarks. The motion, as I see it, was based on the interrogation by McGuire’s attorney, not about the police officer’s testimony, but about the effect of a defendant’s failure to testify. I am simply unable to follow the majority’s statement of possible prejudice, its speculation that somehow the trial judge told the jury that the testimony of the federal narcotics agent was exactly of the same quality and verity as that of the accused, or the premise that the judge’s remarks in any respect related to the credit to be given an officer’s testimony if defendant did not testify or that “they would be left with no discretion in not believing the police officer and that to do so would not be arbitrary,” whatever that means.

It is also difficult for me to relate the remarks of the trial judge made during the voir dire to his remarks in later ruling on the prosecuting attorney’s objection that appellant’s mother was attempting to communicate “second-hand knowledge” to the jury. When the trial judge said “what he saw is for him to say,” appellant did not renew his motion for severance. He simply took exceptions to the court’s remarks. There was no motion for admonition or mistrial. Therefore, I find no basis for reversal.

Appellant’s point IB is not a basis for reversal either. It is based upon testimony of Federal Narcotics Agent Adkins that after he had met appellant and his co-defendant at a Gulf service station, and arranged for their delivery of 100 pounds of marijuana to him, he met the two defendants and another person and was taken in an automobile driven by McGuire to a place where they met appellant Harris and, during this trip McGuire identified a vehicle they passed, saying that “that was Harris, and that he would follow.” Adkins stated that his conversation in planning the delivery was primarily with Harris and this trip was a part of the plan. It later developed, according to Adkins, that the vehicle identified by McGuire stopped and that Harris alighted from it. Putting aside the question of admissibility of the statement as that of a co-conspirator, there was nothing prejudicial about it and McGuire did not, as appellant contends, become a witness against him.

I would affirm the judgment.

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


author: Conley Byrd, Justice.

text:
    Deborah Fay RAPP v. Bernice L. KIZER
    76-136
    543 S.W. 2d 458
    Opinion delivered November 15, 1976 (In Banc)
    [Rehearing denied December 20, 1976.]

      Douglas N. Parker, for petitioner.

      William Crane Smith, Jr., for respondent.
   Conley Byrd, Justice.

By this proceeding, Petitioner Deborah Fay Rapp, the mother of an illegitimate child, questions the jurisdiction of Respondent, Bernice L. Kizer, Chancellor of the Sebastian County Chancery Court, to entertain a petition by the putative father of the illegitimate child to obtain visitation rights and to fix an amount of support which he should pay for support of said child.

The complaint filed by the putative father shows that prior to the rendition of a divorce on October 30, 1973, he and the petitioner were husband and wife. Subsequent to the rendition of the divorce decree the putative father and petitioner cohabited together and as a result of that cohabitation an illegitimate child was born to the petitioner on September 12, 1974. Paragraph #3 of the complaint alleged that petitioner has acknowledged the putative father in writing. The last paragraph of the complaint alleges:

“The Plaintiff, Fred Eugene Rapp, acknowledges the paternity of said child, acknowledges that he is the father of said child and requests that the Court vest the Plaintiff with visitation of said child, requests that the Court vest the Plaintiff with custody of said child and in the alternative, should custody be denied, Plaintiff affirmatively states that he is willing and able to pay child support as ordered by the Court commensurate the Child Family Support Chart as utilized by this Court.”

As can be seen from the complaint, the only issues before the respondent were the rights between the mother and the putative father to an illegitimate child. In that situation we must consult Art. 7, § 28 of the Constitution of Arkansas which provides: “The county courts shall have exclusive original jurisdiction in all matters relating to . .. bastardy. . .

Webster’s New International Dictionary, 2nd Edition, defines bastardy as:

“1. State or quality of being a bastard; illegitimacy.
2. The procreation of a bastard child.”

The term “relating to” has generally been defined as meaning “in respect to; in reference to; in regard to,” Snowden v. Kittitas County School Dist. No. 401, 38 Wash. 2d 691, 231 P. 2d 621 (1951). Can it be said that the action instituted in the chancery court by the putative father is not a “matter relating to . . . bastardy?” To ask the question is but to answer the question for the issues presented for determination obviously flow from and are involved only with the procreation of a bastard or illegitimate child.

The respondent to support the jurisdiction assumed relies upon:

1. The fact that paternity is admitted and not a disputed fact;
2. The definition of bastardy proceedings set out in Higgs v. Higgs, 227 Ark. 572, 299 S.W. 2d 837 (1957); and
3. The rights of parents in general to children born to a marriage as set out in Kirby v. Kirby, 189 Ark. 937, 75 S.W. 2d 817 (1934).

The fact that paternity is admitted does not give the chancery court jurisdiction, Higgs v. Higgs, supra. Our Constitution, Art. 7, § 28, supra, does not limit the original jurisdiction of the county court to “bastardy proceedings” but specifically gives the county court “exclusive original jurisdiction in all matters relating to . . . bastardy ... .” Furthermore, the custody rights between a father and a mother to children born in wedlock are far different from the custody rights between the putative father and the mother of an illegitimate child. See Lipsey v. Battle, 80 Ark. 287, 97 S.W. 49 (1906).

Having determined that the action filed by the putative father was one involving only “matters relating to . . . bastardy,” it follows that the chancery court was without jurisdiction. As pointed out in Higgs v. Higgs, supra, the reason for placing jurisdiction of bastardy matters in the county court may no longer exist but, nevertheless, the Constitution has not been changed and the county court still has exclusive original jurisdiction in such matters.

Writ granted.

We agree. Harris, C.J., and Holt and Roy, JJ.


author: Frank Holt, Justice.

text:
    SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY v. Forrest W. WILLIAMS
    76-68
    543 S.W. 2d 467
    Opinion delivered November 15, 1976

      Hardin, Jesson & Dawson, for appellant.

      Turner & Clift and Tates & Tates, for appellee.
   Frank Holt, Justice.

This appeal arises from a judgment in favor of appellee in a suit involving the extent of the coverage of an automobile insurance policy issued by appellant to appellee. During the time appellee’s insured vehicle was being repaired, it became necessary for him to borrow his daughter’s and her husband’s car. The daughter was staying with her parents during the time her husband was stationed overseas in the military service. When appellee drove the borrowed car, he struck a pedestrian. As a result a suit was filed by the pedestrian for damages against appellee. Appellee made demand upon appellant to defend the suit pursuant to the terms of his insurance policy. Appellant refused stating that the borrowed automobile was not an insured vehicle under the “TEMPORARY USE OF SUBSTITUTE AUTOMOBILE” clause, since the automobile was owned by and furnished for the regular use of appellee’s daughter who was a member of the appellee’s household. After appellee’s successful defense of the personal injury suit against him, he brought this action to collect his attorney’s fees, expenses and a penalty against appellant for its refusal to defend the suit. At trial the court denied appellant’s motions for a directed verdict. For reversal of the judgment, based on a jury verdict in appellee’s favor, appellant asserts that the evidence is insufficient to support the verdict.

In determining whether a verdict is supported by substantial evidence, we review the evidence in that light which is most favorable to the appellee and indulge all reasonable inferences favoring the support of the jury’s findings. Ark. State Highway Comm. v. Cook, 257 Ark. 98, 514 S.W. 2d 215 (1974); and Fields v. Sugar, 251 Ark. 1062, 476 S.W. 2d 814 (1972). Here appellant argues that no substantial evidence exists from which the jury could have found that the automobile driven by appellee at the time of the accident was a temporary substitute automobile within the meaning of the policy. The relevant provision of the insurance contract provides:

VII TEMPORARY USE OF SUBSTITUTE AUTOMOBILE While a described automobile is withdrawn from use, such insurance as is afforded by this policy applies to another automobile not owned by or furnished for the regular use of the named insured or spouse, or members of the same household, while temporarily used as a substitute for such automobile. This insuring agreement does not cover as an insured the owner of the substitute automobile or any employee of such owner.

It is undisputed that appellee’s daughter and her husband were co-owners of the automobile. The issue then is narrowed to a determination of whether there was sufficient evidence to sustain the jury’s implied finding that appellee’s daughter was not a member of his household.

Appellee’s daughter, Brenda, was eighteen years of age and living with her parents when she was married to her husband in June, 1968. The couple first lived with his grandmother approximately one month until he was inducted into the military service. Brenda returned “to my mother’s and father’s house.” Before her husband left for overseas duty, he had a three weeks’ furlough during which time they resided with his grandmother. Then in October or November, 1968, she again moved back with her parents and lived with them until July, 1969. At that time, her husband came home for about a one month’s furlough during which time they visited relatives. After that furlough, he returned overseas. Brenda then “went again to live with [her] mother and father” where she was residing in September, 1969, when her father borrowed her and her husband’s car which was involved in the accident. It appears that Brenda did not drive. During the approximate one year that Brenda lived with her parents, she would occasionally visit relatives. Her parents exercised no control over her. She contributed no money to her maintenance, although she occasionally did some cooking and cleaning. Her parents did not expect her to contribute anything. She had no outside employment and “re [lied] upon [her] father to feed and clothe” her. She received a government allotment check, which originally was $100 a month and eventually raised “to a hundred thirty sometimes or a hundred and forty,” and from which she made the $81 car payment using the balance for her spending money. She testified that her and her husband’s income “was not enough” to require the filing of a tax return. For the taxable year 1969, the appellee father claimed Brenda as a dependent on his income tax return.

We turn now to the law applicable to the recited facts. In American Homestead Ins. Co. v. Denny, 238 Ark. 749, 384 S.W. 2d 492 (1964), we reiterated:

‘It is the duty of the Courts to construe the language [in an insurance contract] used by the parties and such construction is performed by considering the sense and meaning of the terms which the parties have used as they are taken and understood in their plain ordinary and popular sense.”

In the case at bar the policy provision is referred to by the courts as a restricted “drive other cars” clause which is found in liability insurance policies. It does not appear that we have previously construed this particular provision. Here, as indicated, we must determine if there is any substantial evidence that appellee’s daughter was not a member of his “household.” If she was a member, then the policy excludes coverage. We have had occasion to interpret the term “household” in a theft insurance policy which excluded coverage if it was found that the plaintiff’s son, serving in the military, was not a “household” member. In affirming a finding that he was a member, we said in Central Manufacturer’s Mut. Ins. Co. v. Friedman, 213 Ark. 9, 209 S.W. 2d 102 (1948), in pertinent part:

We think the word ‘household’ as used in this section of the policy, supra, meant domicile, residence or place of abode. ‘Household’ is defined in Bouvier’s Law Dictionary, Rawle’s Third Revision, vol. 2., page 1462, as follows: ‘Those who dwell under the same roof and constitute a family.’

In Lontkowski v. Ignarski, 95 N.W. 2d 230 (Wis. 1959), the court defined the word “household” as follows:

‘Household’ is defined by Webster as ‘those who dwell under the same roof and constitute a family.’ That definition corresponds with the common and approved usage of the term and is supported by judicial authority. ‘Persons who dweli together as a family constitute a household. ’

See also Fleming v. Traveler’s Ins., 39 So. 2d 885 (Miss. 1949); Aler v. Travelers Indemnity Co., 92 F. Supp. 620 (D. Maryland 1950); Leteff v. Maryland Casualty Co., 91 So. 2d 123 (La. App. 1956); Simon v. Milwaukee Automobile Mut. Ins. Co., 115 N.W. 2d 40 (Wis. 1962); Giese v. Karstedt, 141 N.W. 2d 886 (Wis. 1966); Tomlyanovich v. Tomlyanovich, 58 N.W. 2d 855 (Minn. 1953); Alabama Farm Bureau Mut. Ins. Co. v. Preston, 253 So. 2d 4 (Ala. 1971). The appellee has cited us no authority to the contrary.

In Alabama Farm Bureau Mut. Ins. Co. v. Preston, supra, the insured’s daughter lived with her parents during the time her husband was overseas in the armed service. Her father was involved in a collision while driving her and her husband’s car. The court addressed itself to the question as to “whether Carol [the daughter] was a resident of Preston’s [the father] household at the time of the collision within the exclusion provision of his policies with the insurer.” In holding that she was a resident of the insured’s household at the time of the collision within the meaning of the policy and denying coverage, the court said:

Under the undisputed facts, Carol came to ‘stay’ with her parents while her husband was overseas. While she did not intend to stay permanently with her parents, nevertheless her stay was to extend for an indefinite time. She was not a mere temporary visitor. Actually, she did remain in her parents’ home for over a year. It was during this time that Mr. Preston had the collision while driving the Dodge automobile. We hold that under the undisputed facts the conclusion is dictated that Carol was residing in her father’s home at the time of the collision. The language of the policy here involved is not legally ambiguous. Such language excludes liability of the insurer under the facts shown.

The rationale expressed there is applicable in the case at bar.

The justification of the exclusionary clause here, which is characterized as the “drive other cars” provision, is well stated in Fleming v. Traveler’s Ins., supra:

We are dealing with a contract of insurance. We must inquire what the parties thereto meant. Practical consideration must be given play, interpreted in the light of the purpose of the policy provision. This provision has repeatedly held to reveal an obvious purpose to avoid a multiple coverage of several vehicles owned by members of the same family, who, by their close intimacy may be expected to use the car of each other without hindrance and without permission, thus increasing the liability of the insurer who has a right to expect each owner to contract for his own coverage.

AppeMee argues that the exclusion clause here is ambiguous and should, therefore, be construed most strongly against the insurer. Life and Casualty Ins. Co. of Tennessee v. Gilkey, 255 Ark. 1060, 505 S.W. 2d 200 (1974). We are of the view that the exclusionary provision of the policy is clear and legally unambiguous. It is unnecessary to resort to rules of construction in order to ascertain the meaning of an insurance policy when no ambiguity exists. McKinnon, Admx. v. Southern Farm Bureau Casualty Ins. Co., 232 Ark. 282, 335 S.W. 2d 709 (1960). The terms of an insurance contract are not to be rewritten under the rule of strict construction against the company issuing it so as to bind the insurer to a risk which is plainly excluded and for which it was not paid.

In the case at bar, we hold that the evidence, when viewed most favorably to the appellee, is not substantially sufficient to support the jury’s finding that appellee’s daughter was not a member of his household at the time he borrowed and was driving her automobile.

Reversed and dismissed.


text:
    Delorn HARMON v. STATE of Arkansas
    CR 76-78
    543 S.W. 2d 43
    Opinion delivered November 15, 1976 (In Banc)

      Gary R. Cottrell, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was convicted by a jury of battery in the second degree in violation of Ark. Stat. Ann. § 41-1602 (1) (d) (Criminal Code 1976). His punishment was assessed at three years in the Arkansas Department of Correction. The prosecution of appellant resulted from his driving a car, which left the road, entered a three foot deep roadside ditch and struck a thirteen year old boy who was playing in the ditch. The victim suffered a broken leg, fractured toe, and a bruised heel and pelvis. Appellant first contends that § 41-1602 (1) (d) is unconstitutional. Appellant argues that the provisions of the statute are patently vague and overbroad, resulting in inadequate guidance to the individual whose conduct is sought to be regulated and is insufficient guidance to a jury in their application of the law to the facts before them. We cannot agree.

§ 41-1602 (1) (d) provides:

(1) A person commits battery in the second degree if: (d) he recklessly causes serious physical injury to another person by means of a deadly weapon.

Appellant argues that the statute “sets no clear standard for the regulation and enforcement of ‘reckless’ conduct.” He reasons that since the severity of the punishment for a battery is controlled by the degree of harm to the individual, an individual cannot know the consequences of his actions in terms of “liability until after the conduct is over and the amount of harm has been established.” He further asserts that the statute “is so overbroad in its possible application by a jury, as to deny the defendant fair adjudication and due process. The Statute requires that a jury find that the defendant: 1) was ‘reckless,’ 2) caused ‘serious physical injury,’ and 3) used a deadly weapon. This Statute, by its overbroad language, may be wrongly applied, as it was in this case, and unfairly used against individuals.” He argues that “[EJvery accident is a potential Battery in the Second Degree by the construction of Statute as used here.”

The statute involved here does not fit such a broad application. The statute requires, as appellant avers, that a jury find the appellant was reckless, caused serious physical injury and used a deadly weapon. In Neal v. State, 259 Ark. 27, 531 S.W. 2d 17 (1975), we applied the standard of specificity as defined in U.S. v. Petrillo, 332 U.S. 1 (1946):

The Constitution has erected procedural safeguards to protect against conviction for crime except for violation of law which have clearly defined conduct thereafter to be punished; but the Constitution does not require impossible standards. The language here challenged conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. The Constitution requires no more.

See also Weston v. State, 258 Ark. 707, 528 S.W. 2d 412 (1975).

In our new Code batteries are scaled in degrees, i.e., first, second and third, with the severity of punishment based not only on the result of the battery in terms of harm done to the victim, but also on the conjunction of a culpable mental state; i.e., recklessly, negligently, or extreme indifference to the value of human life. See Commentary following § 41-1603. Appellant’s argument that only the degree of injury dictates the liability is based on erroneous interpretation of the battery statutes. The new Arkansas Criminal Code provides a detailed definition for each of the required elements of battery in the second degree; i.e., recklessly, serious physical injury and deadly weapon:

(1) ‘Recklessly.’ A person acts recklessly with respect to attendant circumstances or a result of his conduct when he consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of a nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation. § 41-203 (3)
(2) ‘Serious physical injury’ means physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ. § 41-115 (19)
(3) ‘Deadly weapons’ means:
(a) a firearm or anything manifestly designed, made or adapted for the purpose of inflicting death or serious physical injury; or
(b) anything that in the manner of its use or intended use is capable of causing death or serious physical injury. § 41-115 (a) (b)

These definitions were included in the instructions given to the jury. Obviously, as defined in the Code, “recklessly” involves an awareness and “conscious” disregard of a “substantial and unjustifiable risk” that certain attendant circumstances exist or that prohibited consequences will occur. Further, the disregard of the risk “constitutes a gross deviation from the standard of care” of a reasonable person in appellant’s “situation.” There must also be “serious physical injury” to the victirri by means of a “deadly weapon” to justify a conviction of a battery in the second degree. The felony liability of second degree battery manifestly would not attach to mere negligent conduct. Cf. Phillips v. State, 204 Ark. 205, 161 S.W. 2d 747 (1942). It is also pointed out in the Commentary following § 41-1603 that for even the misdemeanor battery statute to apply it requires a showing of negligence greater than that in civil negligence citing § 41-203 (4).

In our view the terminology of § 41-1602 (1) (d) is not vague nor overbroad. The provisions of the statute are of such “common understanding and practice” that it cannot be said that an ordinary individual or juror would have to speculate as to its meaning. Neal v. State, supra.

Appellant next contends that the trial court erred in overruling appellant’s motion for a directed verdict. He argues that the state failed to adduce substantial evidence to sustain all of the elements of battery in the second degree. It is well established that a directed verdict is only proper where there are no factual issues to be determined by the jury and on appeal, the evidence will be reviewed in the light most favorable to the appellee and the judgment will be affirmed if there is any substantial evidence to support it. Munn v. State, 257 Ark. 1057, 521 S.W. 2d 535 (1975).

Here appellant first asserts that the evidence was insufficient to establish one of the required elements of § 41-1602 (1) (d); i.e., recklessness. We disagree. One witness testified that preceding the accident, he saw appellant’s car traveling “pretty fast” in front of his home. The car then returned and he heard screeching of the tires and saw appellant’s car hit the victim. The squealing of the tires “sounded like losing control of it, or squealing around a curve.” The arresting officer testified that appellant had an unobstructed view of the ditch where the victim was playing. Appellant's car left “quite a few feet” of skid marks on the road. Two other witnesses testified that appellant attempted to remove his car from the three foot ditch when the victim was still underneath the car. Witnesses testified that they smelled alcohol on appellant immediately after the accident and the arresting officer testified that appellant “was in kind of a stupor” at the time of his arrest after he had left the scene. We are of the view the state adduced ample substantial evidence to sustain the jury’s finding on the element of recklessness.

Appellant next asserts that the injuries here are not of such a nature to constitute a serious physical injury as contemplated by the drafters of the Code or battery statute. § 41-115 (19), supra. We cannot agree. The victim suffered a broken leg, a fractured toe, bruised heel and pelvis. He was hospitalized for about a month and was in a leg case and traction for two or three weeks during this time. He was walking with crutches at the time of the trial which was about a month and a half after the alleged offense. Even though it be said there is insubstantial evidence that the physical injuries suffered by the victim did not result in or create “a substantial risk of death,” we cannot say, as a matter of law, that a fact question did not exist as to whether the victim’s injuries constituted a “protracted impairment of the function of any bodily member or organ.” Webster’s Third New International-Dictionary defines “protract” as “to continue, prolong, lengthen in time.” It was for the jury to resolve the issue as to whether the injuries constituted a temporary or protracted impairment.

Appellant next contends that here an automobile is not a deadly weapon within the purview of the battery statute. Therefore, he argues the third element or prerequisite of the statute is not established. Suffice it to say that in the Commentary following § 41-1603 it is stated “under § 115 (4) [definition of a deadly weapon] a ‘vehicle’ might constitute such a weapon.” Certainly, it must be said that there is substantial evidence for the jury’s finding that the automobile constituted such a weapon. In accord are People v. Anderson, 229 Ill. App. 315 (1923); Williamson v. State, 111 So. 124 (Fla. 1926); State v. Hollis, 273 P. 2d 459 (Okla. Cr. 1954); and People v. Benson, 152 N.E. 514 (Ill. 1926).

Appellant next asserts that the trial court erred in refusing to give instructions on assault in the first degree and assault in the second degree. Appellant argues that under Ark. Stat. Ann. § 41-105 (2) (b) and (c) (Criminal Code 1976) he was entitled to his proffered instructions on assault in the first and second degrees as lesser included offenses. The provisions relied upon read:

(2) A defendant may be convicted of one offense included in another offense with which he is charged. An offense is so included if:
(b) it consists of an attempt to commit the offense charged or to commit an offense otherwise included within it; or
(c) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpable mental state suffices to establish its commission.

The gist of appellant’s argument is that assault is an attempt to commit a battery and the only difference between battery and assault is that “the former requires a reckless ‘causing’ of a substantial risk of death or serious physical injury and the latter requires a reckless ‘creation’ of a substantial risk of death or serious physical injury.” Ark. Stat. Ann. § 41-1605 (Criminal Code 1976) provides:

(1) a person commits assault in the first degree if he recklessly engages in conduct which creates a substantial risk of death or serious physical injury to another person.
(2) Assault in the first degree is a class A misdemeanor.

Ark. Stat. Ann. § 41-1606 (Criminal Code 1976) provides:

(1) A person commits assault in the second degree if he recklessly engages in conduct which creates a substantial risk of physical injury to another person.
(2) Assault in the second degree is a class B misdemeanor.

It is apparent that the assault provisions apply to a situation which creates risk of death or physical injury while a battery and its penalties are directed towards the situation where actual injury is suffered. In the Commentary following § 41-1602, it is succinctly stated:

In some jurisdictions, ‘battery’ has ceased to exist as a separate offense, its elements having been assimilated into assault provisions. The Commission, however, felt that assaults and batteries were worthy of treatment as separate offenses having distinct criminal sanctions. Accordingly, the Code preserves the conceptual distinction drawn between ‘assaults” and ‘batteries’ by present law. **** Under the Code, conduct is denominated a ‘battery’ or ‘assault’ depending on whether or not physical injury results, (italics supplied.)

Further, § 41-105 (3) provides that “[T]he court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.” See also Caton v. State, 252 Ark. 420, 479 S.W. 2d 537 (1972); and Frederick v. State, 258 Ark. 553, 528 S.W. 2d 362 (1975). Here, in view of the evidence, the court was not obligated to give instructions on assault. Furthermore the Commentary following § 41-105 clearly shows that subsection (2) (c), supra, is intended to apply to a situation where battery in the third degree is a lesser included offense within battery in the second degree. Here, the court instructed the jury on third degree battery and, also, at appellant’s request, on reckless driving.

Finally appellant asserts the trial court’s admission of testimony relating to appellant’s actions subsequent to the alleged battery was irrelevant and prejudicial. The testimony objected to was with respect to appellant’s activities in moving his car and leaving the scene. The evidence is clearly relevant to the issue of whether appellant’s conduct was “reckless,” a prerequisite or an element of the offense charged and, further, was close enough in time to the occurrence to be part of the res gestae, manifesting appellant’s state of mind at the time of the accident.

Affirmed.


author: Elsijane T. Roy, Justice.

text:
    Marie DUPREE v. WORTHEN BANK & TRUST CO., N.A., as Executor of the Estate of Dollie Vivian CarlLee, Dec’d, and as Trustee of the Dollie Vivian Revocable Trust
    76-74
    543 S.W. 2d 465
    Opinion delivered November 15, 1976

      Johnson, Calhoun & Lewis, Ltd., by: Fletcher C. Lewis, for appellant.

      Wright, Lindsey & Jennings, by: William D. Haught, for appellee.
   Elsijane T. Roy, Justice.

On January 4, 1972, Dollie Vivian CarlLee entered into a lease agreement with appellant Marie Dupree for a term of five years. The lease term was to run from January 2, 1972, until December 31, 1976. Appellant took possession of the leased premises pursuant to the lease and performed her obligations under the lease until she was evicted from the premises.

At the time the lease was executed, Mrs. CarlLee had only a life estate in the leased property, the remainder interest having been conveyed to Gene Wirt by warranty deed recorded on February 10, 1966. However, the lease made no mention of the fact that Mrs. CarlLee’s interest was only that of a life tenant.

On August 27, 1974, approximately sixteen months before the lease term expired, the lessor, Mrs. CarlLee, died. Wirt thereafter canceled appellant’s lease agreement effective January 1, 1975. This suit followed against Mrs. CarlLee’s estate in order to obtain compensation for breach of the lessor’s covenant of quiet enjoyment. The case was submitted to the court upon stipulation of facts. Both parties moved for a summary judgment, and appellee’s motion was granted. This appeal followed.

Appellant argues that she was entitled as a matter of law to a cause of action against the estate of appellee-lessor for breach of the lessee’s covenant of quiet enjoyment. The trial court relied on Edwards v. Griffin, 228 Ark. 844, 310 S.W. 2d 798 (1958), as dispositive of the issue because Edwards held that upon the death of a tenant for life all interest of his lessee ceases. However, the Edwards case deals only with the rights of the evicted lessee and the remainderman of the life tenant. It establishes that the lessee cannot compel the remainder-man to carry out the terms of the lease and that the remainderman can evict the lessee. It does not involve an action by the lessee against the estate of the lessor after eviction.

In Re O’Donnell, 240 N.Y. 99, 147 N.E. 541 (1925) is a case in which an action was brought by a lessee against the estate of the lessor-life tenant for a breach of the covenant of quiet enjoyment. The court held the action was proper and the lessee was entitled to recover damages for the breach from the estate of the deceased lessor. In Re O’Donnell is not necessarily contra to Edwards, supra, since Edwards treats only the rights between the lessee and the remainderman; any other comments beyond that point are dicta and not controlling on the issue here.

6 A.L.R. 1506, a pertinent annotation, states:

A lease made by a tenant for life terminates “eo instante” on his death, and if there is a covenant, express or implied, for quiet enjoyment, the estate of the lessor is liable for a breach thereof. Duker v. Kaelin (1906) 28 Ky. L. Rep. 900, 90 S.W. 959; Hamilton v. Wright (1895) 28 Mo. 199; Snedecker v. Thompson (1899) 26 Misc. 160, 56 N.Y. Supp. 775; McIntyre v. Clark (1894) 6 Misc. 377, 26 N.Y. Supp. 744.

Another annotation to the same effect is found in 171 A.L.R. 489.

See also § 27 of 41 A.L.R. 2d 1448, which in part states:

* * * The following cases appear to approve, either expressly or impliedly, the rule that an eviction of the lessee by the holder of a paramount title, or by the lessee yielding to such a title, constitutes a breach of the covenant for quiet enjoyment. (Italics supplied). (Citing cases).

In Re Hunt’s Estate, 120 Misc. 174, 197 N.Y.S. 633 (1923), the court stated:

* * * If Hunt, or his attorney, had said nothing to the lessee regarding the character of his ownership, and the eviction had taken place upon his death prior to the termination of the term of the lease, compensatory damages would arise, because the withholding of the knowledge of the life tenancy of the lessor was such lack of good faith in law as to approximate fraud on the part of the lessor, and the execution of the lease by the lessor without disclosing the quality of his estate would be held to have misled the lessee.

In Petroleum Collections Incorporated v. Swords, 48 Cal. App. 3d 841, App. 122 Cal. Rptr. 114 (1975), it was held that in the absence of language to the contrary, every lease contains an implied covenant of quiet enjoyment. There was no language to the contrary in the case at bar. The agreement described the property and stated it was leased to lessee:

II.
To have and to hold the said premises unto the LESSEE for the term of five (5) years, from the 2nd day of January, 1972, until and including the 31st day of December, 1976.

After establishing the terms of payment the lease continued:

VII.
LESSOR covenants with LESSEE that LESSEE shall and may peaceably and quietly enjoy, have and hold the leased premises during the term aforesaid.

Appellee contends that appellant has no cause of action because the warranty deed executed by Mrs. CarlLee had been recorded in 1966 prior to leasing the property in 1972 and appellant had constructive notice that Mrs. CarlLee’s estate was limited. We do not agree. Mrs. CarlLee knew her interest was limited because of the previously executed deed, but she made no mention of it in the lease contract. Under these circumstances we find appellant has a cause of action against Mrs. CarlLee’s estate for breach of the covenant of quiet enjoyment. The court should have denied appellee’s motion for summary judgment.

Reversed and remanded.

We agree. Harris, C.J., and Byrd and Holt, JJ.

      This case is cited with approval in Dave Herstein Co. v. Columbia Pictures Corp., 4 N.Y. 2d 117, 172 N.Y.S. 2d 808, 149 N.E. 2d 328 (1958).


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

text:
    BANK of GLENWOOD v. ARKANSAS STATE BANKING BOARD et al
    76-157
    543 S.W. 2d 761
    Opinion delivered November 22, 1976 (In Banc)
    [Rehearing denied December 20, 1976.]

      Wright, Lindsey & Jennings, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Fred Frawley, Asst. Atty. Gen., and Harry E. Meek, for appellees.

      Stubblefield & Matthews, for Intervenor, Caddo State Bank.
   George Rose Smith, Justice.

In July of 1975 an application was filed with the State Bank Commissioner for a charter for a new bank, to be named Caddo State Bank and to be located in the city of Glenwood. The application was resisted by the Bank of Glenwood, the only bank in the city. After the submission of extensive proof by both parties the State Banking Board entered an order granting the application upon the basis of detailed findings of fact. The Board’s action was sustained by the circuit court. Four points for reversal are argued here.

We find no merit in the appellant’s first argument, that the Bank Commissioner arbitrarily and capriciously limited the appellant’s pre-hearing discovery. To begin with, the appellant succeeded in obtaining access to almost everything that it sought to examine. It was particularly interested in loans made by two escrow banks to subscribers to stock in the proposed bank. Eventually all those subscribers agreed to the appellant’s request to see their individual files. There remained one master filed to which the appellant was at first denied access. The Bank Commissioner later ruled, we think correctly, that certain information in that file, with respect to proposed officers of the new bank, was confidential, and that the release of certain other data would give the Bank of Glenwood an unfair competitive advantage over the new bank. The Commissioner directed that information pertinent to those two matters be removed from the file, with the remaining contents of the file being made available to the appellant. We are not convinced either that the Commissioner created a “banker’s privilege,” as the appellant argues, or that any information relevant to the basic application was arbitrarily or capriciously withheld. No abuse of discretion is shown.

The appellant also argues that the limitation upon discovery prevented its attorney from adequately preparing to cross-examine an adverse expert witness, James Becknell. Rickett v. Hayes, 251 Ark. 395, 473 S.W. 2d 446 (1971). It is asserted that Becknell testified that “the bank would be economically feasible and would show a profit after two years.” It is then asserted that Becknell’s projections were based upon expense figures supplied by Twin City Bank and that the appellant’s inability to obtain those figures “severely restricted appellant’s ability to cross-examine” Becknell.

The proof simply does not sustain this argument. If Becknell made any projections involving expenses over a two-year period or any other period, it must have been in a discovery deposition that is not in the record before us. In actuality, BecknelPs testimony had to do with such matters as population growth in the Glenwood area, the influx of new business enterprises, dissatisfaction on the part of some people with the Bank of Glenwood, the “leakage” of potential deposits from the Glenwood area, and similar statistics that were offered to buttress BecknelPs conclusion that the overall situation would support another bank in Glenwood. BecknelPs direct examination included no projections about the new bank’s income or expenses, nor was he cross-examined on that subject. Moreover, the Board relied primarily upon the Federal Deposit Insurance Corporation’s computations in finding that the proposed bank’s future earning prospects were favorable. We find no basis in the record for the appellant’s argument that its ability to cross-examine Becknell was restricted.

As its second point for reversal the appellant argues that the Bank Commissioner acted unlawfully in assuming the supervision and enforcement of the Arkansas Securities Act with respect to the stock in the proposed bank. If so, the only persons who might be hurt would be the subscribers to the stock. We cannot see how the appellant has any standing to complain about this matter, even if it be assumed that its assertions are correct.

Thirdly, the appellant argues that the circuit court denied the appellant’s constitutional and statutory right to judicial review. This argument is based upon Section 13 of the Administrative Procedure Act, which contains this provision: “The [circuit] court shall, upon request, hear oral argument and receive written briefs.” Ark. Stat. Ann. § 5-713 (g) (Repl. 1976).

Perhaps the appellant has a basis for complaint, but we are unwilling to remand the cause upon this ground. At the outset, we are not certain that the point was brought to the trial court’s attention. The appellant first filed in the circuit court its “Notice of Appeal and Petition for Judicial Review,” a two-page typewritten pleading. The prayer for relief asked the court to hear additional evidence, to hear oral argument and receive written briefs, and to reverse the decision of the Board. After several other pleadings had been filed by the parties the court entered its order, “being well and sufficiently advised,” affirming the action of the Board. There is no indication that any request for oral argument or for the submission of briefs was actually presented to the court or that any such objection was made after the entry of the court’s order, if we assume that it was made without notice to counsel. In the absence of any such request or objection, we are unwilling to say that the court should have invited oral argument or written briefs merely because those matters were included in the appellant’s first pleading. (We note that no complaint is made about the trial court’s failure to hear additional evidence, which was also mentioned in the same pleading.) Moreover, the appellant has had the opportunity to file written briefs and to ask for oral argument in our court. We do not imply that in no instance would we remand a case to the circuit court upon the ground now argued, but that action is not appropriate here.

The appellant’s final contention is that the Board’s decision to grant the new charter is not supported by substantial evidence. We find no merit in this contention, especially in the light of the supplemental abstract of the record, submitted by counsel for the applicants. The Board made unusually detailed and specific findings of fact and conclusions of law. We are convinced that the applicants’ testimony, especially that of H. J. Ligón, John E. Cook, and Becknell, supports the Board’s decision. Nothing would be accomplished by a narration of the evidence.

Affirmed.

Byrd, J., not participating.

Jones, J., dissents.

John A. Fogleman, Justice,

dissenting to denial of petition for rehearing. I would grant the petition for rehearing because of denial of discovery of Twin City Bank’s calculation of estimated operating expenses.


author: George Rose Smith, Justice.

text:
    John Henry KAY v. STATE of Arkansas
    CR 76-131
    543 S.W. 2d 479
    Opinion delivered November 22, 1976

      Harold L. Hall, Public Defender, by: William R. Simpson, Dep. Public Defender, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Terry R. Kirkpatrick, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

John Henry Kay appeals from a verdict and judgment sentencing him to five years’ imprisonment for robbery and to two additional years for committing the offense with a firearm. We find no merit in the two points for reversal that are presented.

The victim of the robbery, Khachia Muradain, who was employed in his son’s liquor store, speaks Armenian but not English. The son, who was not present when the robbery occurred and who did not testify, acted as the interpreter when his father testified for the State. Defense counsel objected to that procedure, on the ground that the son was biased, and also asked for a mistrial.

No prejudicial error is shown. The son had had some earlier experience as an interpreter, but he was evidently not skilled in that role. Occasionally he interposed remarks of his own instead of confining himself to the attorneys’ questions and to the witness’s answers. His remarks, however, had no direct bearing on the merits of the case. Any impropriety in the procedure could readily have been corrected by an admonition to the jury, but the court was not asked to take that action. In the circumstances the request for a mistrial was properly denied. Back v. Duncan, 246 Ark. 494, 438 S.W. 2d 690 (1969). Moreover the questions and answers were recorded on tape so that the son’s accuracy as an interpreter could have been checked later on, but that step does not appear to have been thought necessary.

It is also argued that the accused was denied his right to a speedy trial. Kay was in prison in Louisiana when the information was filed, but eventually he waived extradition and consented to being brought to Arkansas for trial. Having waived extradition he is not in a position to, and does not, question the extradition procedure. He does assert, however, that the State was required to exercise good faith in seeking his return to Arkansas. Smith v. Hooey, 393 U.S. 374 (1969). From that premise he argues that the State’s good faith is rebutted by its use of certain “pre-notarized” documents in the extradition proceedings and that therefore he was denied a speedy trial. This argument is not sound. We cannot approve the use of such documents, but we fail to see how their use implies a lack of good faith as far as a speedy trial is concerned. To the contrary, presumably the documents were used to hasten Kay’s return to Arkansas rather than to retard it. Consequently no prejudice from their use appears.

Affirmed.

We agree. Harris, C.J., and Fogleman and Jones, JJ.


text:
    Adolph BATTLE v. Charles DANIELS et al
    76-158
    543 S.W. 2d 477
    Opinion delivered November 22, 1976

      Walker, Kaplan & Mays, P.A., by: Henry L. Jones, Jr., for appellant.

      Herm Northcutt and Thelma Lorenzo, for appellees.
   Conley Byrd, Justice.

The issue on this appeal is whether the Appeals Tribunal and the Board of Review correctly dismissed the appeal of appellant Adolph Battle because it was not Filed within the time prescribed by Ark. Stat. Ann. § 81-1107-d-2 (Supp. 1975).

The record shows that on May 13, 1975, the Director of the Department of Labor mailed a notice to appellant showing that his claim for unemployment had been denied. Appellant did not receive the notice of denial of the claim until June 11, 1975. On June 12, 1975, he filed his notice of appeal. In ruling that the appeal was Filed too late the Appeal Tribunal Referee quoted from Ark. Stat. Ann. § 81-1107-d-2 (Repl. 1960), as it existed prior to Acts 1975, Ño. 609 which became effective on March 28, 1975. The law as it existed before March 28, 1975 provided:

. . The claimant, the Commissioner, or any other party entitled to notice, may file an appeal from a determination made by the agency with an appeal tribunal or with any office of the Arkansas State Employment Service within 15 days after the date of mailing of the notice to his last known address, or if such notice is not mailed, within 15 days after the date of delivery of such notice. .

After March 28, 1975, the time for taking an appeal is as follows:

“. . . The claimant, the Director of Labor, or any other party entitled to notice, may file an appeal from a determination made by the Agency with an appeal tribunal or with any office of the Employment Security Division within fifteen (15) days after the date of mailing of the notice to his last known address, or if such notice is not mailed, within fifteen (15) days after the date of delivery of such notice. If mailed, an appeal shall be considered to have been filed as of the date of the postmark on the envelope. Provided, that if it is determined by an Appeals Tribunal or the Board of Review that the appeal is not perfected within the fifteen (15) day period as a result of circumstances beyond the appellant’s control, such appeal may be considered as having been filed tirnely. ”

The circuit court presumed from the record that the Board of Review and the Appeals Tribunal had taken into consideration the 1975 amendment to Ark. Stat. Ann. § 81-1107-d-2, but in view of the fact that the old law referred to “...the Commissioner,” and the 1975 amendment refers to “...the Director of Labor,” we have concluded that since the law recited by the administrative tribunals used the term “the Commissioner” the circuit court erred in assuming that the Appeals Tribunal and the Board of Review had made a determination pursuant to the 1975 amendment.

Without discussing or passing upon the other points raised, we are reversing and remanding the matter to the circuit court with directions to remand to the appropriate administrative tribunal for a reconsideration of the jurisdictional dispute pursuant to the 1975 amendment and for such further proceedings as may become necessary.

Reversed and remanded.

We agree: Harris, C.J. and Holt and Roy, JJ.


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    B. E. MILLER v. Gary SCROGGINS, d/b/a GREENBRIER GROCERY
    76-142
    543 S.W. 2d 476
    Opinion delivered November 22, 1976 (In Banc)

      Guy H. Jones, Phil Stratton, Guy Jones Jr., and Casey Jones, for appellant.

      Francis T. Donovan, for appellee.
   Frank Holt, Justice.

A jury awarded the appellee SI ,- 051.04 together with costs in his action against appellant on an open account. The trial court taxed as costs the compensation of eighteen jurors who were sworn for the trial of the cause and paid $7.50 each for their services. The only issue on appeal is whether the trial court exceeded its authority in taxing jurors’ fees as costs. Appellant argues there is no authority, statutory or otherwise, for the imposition of these costs. Appellee, however, cites as authority Ark. Stat. Ann. § 39-302 (Repl. 1962). The first sentence and only pertinent part reads:

Jurors’ compensation shall be taxed as cost and paid by the unsuccessful party.

Appellee’s reliance on this statute is misplaced.

Obviously, this sentence of the annotated act is derived from the concluding provision of Act 89 of 1911, § 1, which provides:

Section 1. Hereafter jurors shall receive compensation as follows: Each grand or petit juror in the circuit court per day, three ($3.00) dollars; each juror attending a view, inquest or on the execution of a writ ad quad damnum per day, one ($1.00) dollar; each juror in a justice court, for each day’s service, or fractional part thereof, whether rendering a verdict or not, fifty (50^) cents; each juror in either the county or the probate court, for each day’s service in either court, one ($1.00) dollar to be taxed as cost and paid by the unsuccessful party.

Appellee argues that the concluding words “to be taxed as cost and paid for by the unsuccessful party” modify each of the preceding sentences since they are separated by semicolons. In other words the modification is not limited to the concluding portion or sentence which relates only to county or probate courts. We cannot agree with appellee’s interpretation of the Act.

Further, a study of the historical background of Act 89 of 1911 clearly shows that the legislative intent is to restrict the imposition of jurors’ fees as costs to the county and probate courts. Gantt’s Digest, § 2015 (1874); Act 185 of 1875, § 38; Act 121 of 1885; Kirby’s Digest, § 3519 (1904). These preceding acts provide in a separate and distinct sentence or section compensation (by the county court) for petit jurors in circuit court. Significantly, there was never a provision that the jurors’ fees be taxes there as costs. To the contrary, in a separate and distinct sentence or provision compensation for jurors’ services in “either county or probate courts [is] to be taxed as other costs and paid by the unsuccessful party.” Act 291 of 1905, § 1, which amended Kirby’s Digest, § 3519, consolidated the provisions for compensation for jurors in the various forums, which included the circuit, county and probate courts. There, again, compensation for jurors in each forum is provided for in a separate and distinct sentence. The only authority for taxing jurors’ services as costs is in the provision relating to county or probate court where the cost is “paid by the unsuccessful party.” Act 314 of 1909, § 1, increased the compensation of jurors. In doing so semicolons were used there for the first time rather than separate and distinct sentences or sections with respect to the separate forums. Again the only provision for the tax to be paid as costs by the unsuccessful party was in the county or probate court whenever a jury was used. Act 89 of 1911 (Ark. Stat. Ann. § 39-302) amended § 5, which is not pertinent here. However, § 1 of the 1911 Act reenacted verbatim § 1 of the 1909 Act relating to the provisions for jurors’ compensation.

Consequently, it is manifest from the legislative history that no statutory authority exists for jurors’ services to be taxed as court costs against the appellant in the case at bar. See Independence County v. Dunkin, el al, 40 Ark. 329 (1883). Further, there is a sound basis for taxing the cost against the unsuccessful party in county or probate proceedings since it is most infrequent that jurors’ services are ever utilized there.

The appellee insists, however, that if no statutory authority exists then a rule of the local Circuit court provides that the costs of a jury are to be assessed against the losing party whenever a jury is requested in a controversy when the amount involved is less than $2,500 in value. The rules are not abstracted and neither do we find them on file, as is required, with the clerk of this court. Therefore, we do not consider the local rule. Rule 12 of Uniform Rules for Circuit and Chancery Courts, Ark. Stat. Ann. Vol. 3A (Supp. 1975); Washington National Insurance Co. v. Meeks, 249 Ark. 73, 458 S.W. 2d 135 (1970). See also St. L., I.M. & S. Ry. v. Williams, 49 Ark. 492, 5 S.W. 883 (1887). Ark. Constitution (1874), Art. 7, § 13.

Judgment for jurors’ fees as costs is reversed.

Reversed.


text:
    Willie BURTON Jr. v. STATE of Arkansas
    CR 76-126
    543 S.W. 2d 760
    Opinion delivered November 22, 1976

      Woodward & Kinard, Ltd., by: Michael G. Epley, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant represented himself before a jury which found him guilty of forgery and uttering and assessed his punishment, as a habitual criminal, at ten years’ imprisonment on each charge. The court ordered the sentences to be served concurrently.

Appellant contends through court appointed appellate counsel that the trial court erred in refusing to appoint another trial attorney after appellant and his court appointed counsel, Mr. Black, were unable to agree on defense strategy and, further, the court erred by failing to adequately warn appellant of the risks involved in conducting his own defense. Mr. Black had recommended before trial that appellant plead guilty in view of the state’s evidence and the prosecutor’s offer of a five year sentence on a guilty plea to the present and additional charges. Appellant rejected the plea bargain. At trial the appellant insisted on his right to represent himself if he could not have another court appointed attorney. Mr. Black told the court “I did not inform this defendant that I would not try the case or that I could not represent him in court.” The appellant stated that although his court appointed counsel “was willing to fight the case,” he preferred to represent himself in view of Mr. Black’s recommendation of a plea of guilty. The court explained to appellant that appointment of counsel was done on a rotation basis and he considered Mr. Black a competent and capable attorney. Therefore, the court would not appoint another attorney. Mr. Black, as directed by the court, sat at the counsel table in an advisory capacity to appellant during the trial.

The right to counsel is a personal right and the accused may knowingly and intelligently waive counsel either at a pretrial stage or at trial. Slaughter v. State, 240 Ark. 471, 400 S.W. 2d 267 (1966); Faretta v. California, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); Barnes v. State, 258 Ark. 565, 528 S.W. 2d 370 (1975); and Williams v. State, 153 Ark. 289, 239 S.W. 1065 (1922). Here the record indicates that the court thoroughly acquainted appellant with his rights and the nature of the charges against him. Further, the trial court went to considerable lengths, including appointment of standby counsel, to insure that appellant had the greatest latitude in his efforts to represent himself. Appellant was no stranger to court, room procedures since he admittedly was' previously convicted of forgery and uttering. There is no contention that appellant was mentally incompetent. The record discloses that, he presented and questioned his witnesses, conducted cross-examination of the state’s witnesses, objected to evidence and consulted with his standby appointed attorney. A defendant’s technical legal knowledge is irrelevant to the assessment, of a knowing exercise of his constitutional right to represent himself. Faretta v. California, supra. In the case at bar, we hold that appellant knowingly and intelligently elected to voluntarily represent himself.

Appellant next asserts error by the trial court in allowing the state to interrogate appellant about the revocation of a previous suspended sentence for forgery and uttering because of a subsequent conviction. He argues that such a question was improper as a violation of Rule 609 (a) of the Uniform Rules of Evidence. However, the effective date of the Rules is July 1, 1976. Appellant was tried on January 14, 1976. Therefore, Rule 609 (a) is inapplicable. It follows that appellant’s conviction of a misdemeanor was admissible as going to the credibility of the witness. Hays v. State, 219 Ark. 301, 241 S.W. 2d 266 (1951); and Ark. Stat. Ann. § 28-605 (Repl. 1962). Another answer here is that the appellant, during his redirect testimony, discussed the subject of his previous conviction. We find no merit in this assertion.

Appellant’s final point is that “[t]he court erred in admitting into evidence during application of the habitual criminal statute, a copy of a penitentiary commitment showing that appellant’s suspended sentence was revoked for conviction of a misdemeanor in municipal court.” The penitentiary commitment makes no reference to a conviction of a misdemeanor. Further, the subject of his felony conviction was previously discussed by the appellant himself as a witness and during which time he referred to the misdemeanor charge as a “little confusion” which resulted in the revocation of his suspended sentence. The jury found that the appellant had only one previous felony conviction which appellant had freely admitted. In the circumstances we hold that appellant has demonstrated no prejudicial error by the trial court’s action.

Affirmed.

We agree: Harris, C.J., and Byrd and Roy, JJ.


text:
    Rodney LEWIS v. Suzanne LEWIS
    76-144
    543 S.W. 2d 222
    Opinion delivered November 22, 1976

      James C. Cole, for appellant.

      Monroe L. Bethea, for appellee.
   Elsijane T. Roy, Justice.

Appellee prevailed in this action for divorce on the grounds of appellant’s willful failure to support her and their two children. The parties were married in 1966 and separated February 5, 1975. After a hearing on September 30, 1975, the court entered an order granting the divorce, providing for custody, support, reasonable visitation and restraining the parties from bothering each other.

The decree to this effect was filed on November 21, 1975. On February 24, 1976, appellant was again in court on a contempt citation for refusal to comply with the court’s order. At the hearing the court announced:

* * * I am going to suspend your visitation rights with your children from this day forward until such time you can appear before this Court and assure this Court that you will not go down there and espouse religion unto your ex-wife or child. * * *

The order pursuant to the hearing provided inter alia as follows:

. . . that the corrected decree should be and is hereby modified and the defendant’s right of reasonable visitation should be and is hereby cancelled and terminated until such time as the defendant may be able to show the court that visitation can be exercised without defendant’s espousing and discussing religion with the plaintiff or the children.

On appeal appellant first contends the court erred in failing to deny the divorce under the evidence. We find no merit in this contention. The record reflects that appellant was a college graduate with a degree in accounting, and that he later passed the Certified Public Accountant’s examination. Thus, appellant was qualified by education to hold employment with better than average earning potential and had a number of job opportunities. However, for various reasons he either worked for employers only a short period of time, or would not accept employment at all. Appellee testified that to her knowledge he had not been gainfully employed from December, 1974, until the time of the hearing on October 28, 1975. Prior to that time he worked only sporadically. It is not necessary to detail all the evidence on this point, but on review we find the chancellor’s decree granting the divorce for nonsupport is not against the preponderance of the evidence.

Appellant next contends the court erred in denying visitation rights based upon religious grounds. We agree that visitation rights cannot be denied appellant for espousing his religious beliefs. However, this does not mean that the trial court could not deny visitation rights for some valid reason such as deliberate nonsupport, violence or possible harm to the children. Also there is some evidence in the record, although not fully developed, that appellant was teaching the children disrespect for their mother and encouraging disobedience to her. This would be very detrimental to raising the children properly, and the court might want to consider such action in determining visitation rights.

We have considered also appellant’s other allegations of error and find no merit in them.

Accordingly the decree is affirmed as to the granting of the divorce, custody and support, but remanded to the. chancellor for determination of appellant’s visitation rights.

We agree. Harris, C.J., and Byrd and Hoi.t, JJ.