text:
    John BARKLEY et al v. Rayburn CULLUM
    5-5875
    479 S.W. 2d 535
    Opinion delivered May 1, 1972

      Shackleford & Shackleford, for appellants.

      Guy H. Jones, Phil Stratton, and Guy Jones, Jr., for appellee.
   Conley Byrd, Justice.

This appeal by John Barkley, Jackie Bowden and Earl Gibbon Transport, Inc., from a probate court order permitting appellee Rayburn Cullum to resign as personal representative of his deceased wife’s estate, arises out of a venue race. See Ark. Stat. Ann. § 27-610 and § 27-611 (Repl. 1962). The facts show that on June 30, 1971, Sandra Cullum and Jerry R. Thorne were escorts for a mobile home being towed by a tractor owned by Chandler Trailer Convoy, Inc., and driven by Edward W. Byers on U. S. Highway 167 in Calhoun County. A collision there occurred between the mobile home and the escort vehicle operated by Sandra Cullum and a tractor trailer driven by Jackie Bowden. The tractor driven by Jackie Bowden was owned by John Barkley and the trailer attached thereto was owned by Earl Gibbon Transport, Inc.

Pursuant to a petition filed on July 7, 1971, the Faulkner County Probate Court appointed Cullum administrator of his deceased wife’s estate. Letters of administration were issued on July 9, 1971. The petition listed the estimated value of decedent’s estate as follows:

“Real property-----$ -0-

Personal property---100.00

Suit for wrongful death.”

July 14th Earl Gibbon Transport, Inc., filed suit in Calhoun County Circuit Court against Rayburn Cullum, administrator of the Estate of Sandra Cullum, et al, and had a summons issued and placed in the hands of the Faulkner County Sheriff at 2:15 p.m. on July 14, 1971.

July 15, 1971, John Barkley and Jackie Bowden filed a suit in Phillips County Circuit Court against Rayburn Cullum administrator of the Estate of Sandra Cullum, et al, and had a summons issued and placed in the hands of the sheriff of Faulkner County on July 15, 1971.

July 16, 1971, Cullum filed a petition with the Faulkner County Probate Court requesting that he be permitted to resign on the premise that he was physically and mentally unable to perform any duties as administrator. On the same day he filed his verified account as administrator showing that no assets had come into his hands.

On July 19th, the Probate Judge, being unaware of the suits filed, entered an order accepting appellee’s resignation as administrator. On the same day appellee individually and as father and next friend of four minor children filed a wrongful death action in the Faulkner Circuit Court against Earl Gibbon Transport, Inc., John Barkley and Jackie Bowden.

Thereafter Cullum, in the Calhoun and Phillips County actions, alleged that the summons were served upon him on July 22nd at a time when there was no duly appointed, qualified or acting administrator of the Estate of Sandra Cullum and moved to quash the summons served.

Appellants, in response to the summons issued in the Faulkner Circuit Court action by appellee, filed mo-dons to dismiss.

August 6, 1971, appellants petitioned the Faulkner Probate Court to set aside its July 19th order permitting appellee to resign as administrator. This appeal is from the order accepting the resignation and the order denying the petition to set aside the July 19th order. For reversal appellants contend that the order permitting appellee to resign was invalid and that good cause was shown to set aside the order. Appellees for affirmance contend that appellants are not interested parties for purposes of contesting the order permitting the resignation and that appellants are not aggrieved parties and have no standing to appeal. While we affirm the action of the trial court as being a matter within its discretion, we do not agree with appellee’s contentions.

When appellants filed their actions in the Calhoun and Phillips County Circuit Courts and caused their summonses to be placed in the hands of the sheriff of Faulkner County, at a time when a duly appointed and qualified administrator was acting, the venue of their actions were fixed by Ark. Stat. Ann. § 27-301 (Repl. 1962), as being the actions first commenced, King Adm’r. v. Bean, Judge, 239 Ark. 653, 391 S.W. 2d 24 1965), and they were certainly interested parties, Ark. Stat. Ann. § 62-2003 (k) (Repl. 1971), and aggrieved parties, Ark. Stat. Ann. § 62-2016 (Repl 1971), for purposes of appealing from probate court orders that affected those proceedings. However, the resignation of a personal representative is ordinarily a matter of discretion with the Probate Judge. Here the order accepting the resignation did not affect the venue fixed in the actions filed and in view of the remedy available to appellants for the appointment of a personal representative in succession, Ark. Stat. Ann. § 62-2204, (Repl. 1971), we are unable to say that the Probate Judge abused his discretion in permitting the resignation of appellee to stand.

Affirmed.

      The summons in the Earl Gibbon Transport, Inc., suit certifies that the sheriff served it on “the 16-22 day of July, 1971. . .” In the Phillips County suit the certificate is “I have this 15-22 day of July 1971 duly. . .” served the summons.


source: Caselaw Access Project

author: Frank Holt, Justice.

license: Public Domain

text:
    Andrew Bynum JONES v. STATE of Arkansas
    5708
    479 S.W. 2d 548
    Opinion delivered May 1, 1972

      David C. Shelton, for appellant.

      Ray Thornton, Atty. Gen., by James A. Neal, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

This appeal results from a revocation of a suspended sentence, which appellant received upon a plea of guilty to a charge of criminal non-support. Probation was conditioned upon appellant’s good behavior, payment of court costs, immediate payment of $742.50 into the court registry for the maintenance and support of his minor child and $22.50 per week for her continued maintenance. Thereafter the appellee petitioned for revocation of the suspended sentence, asserting that the appellant had failed to comply with the court’s order with respect to making the weekly support payments. For reversal of the judgment revoking the suspended sentence, the appellant, by his court appointed counsel, asserts that the court abused “its discretion in revoking appellant’s suspended sentence in that there was not sufficient evidence upon which to base the revocation of the suspended sentence.”

The local Circuit Clerk and Recorder, who kept the official records of support payments paid into the registry of the court, testified that during the approximate 80 weeks interval between the date of the suspended sentence and the petition for revocation the appellant had only paid 6 weekly payments and each of these was delinquent. The appellant, who was present in court, did not testify.

The law is firmly established that the trial court is accorded broad discretion in the revocation of a suspended sentence, and we uphold the exercise oí this discretionary authority in the absence of gross abuse. Mad dox v. State, Ark. 247 553, 446 S.W. 2d 210 (1969); Smith v. State, 241 Ark. 958, 411 S.W. 2d 510 (1967).

In the case at bar, the court did not abuse its discretionary power inasmuch as there was sufficient evidence to support the revocation of the suspended sentence

Affirmed.

Fogleman, J., not participating.


author: Carleton Harris, Chief Justice.

text:
    DACUS LUMBER COMPANY, A Delaware Corporation v. David DICKEY and Garvin BUTLER
    5-5868
    479 S.W. 2d 849

      Opinion delivered May 8, 1972

      Daggett & Daggett, for appellant.

      Skillman & Furrow, for appellees.
   Carleton Harris, Chief Justice.

Appellant, Dacus Lumber Company, instituted suit in the Crittenden County Circuit Court against David Dickey and Garvin Bulter, appellees herein, in which it was alleged that appellees had illegally cut and removed timber from certain lands (a tract described by metes and bounds and said to contain 21.88 acres) in Crittenden County, belonging to appellant. Appellees denied that the cutting was illegal, asserting that the timber was cut from two tracts of land belonging to Butler. A cross-complaint was filed alleging that appellant was wrongfully in possession of these lands belonging to appellees, and had wrongfully cut and removed timber which belonged to Butler. Upon motion of appellant, the case was transferred to the chancery court, and after preliminary matters had been disposed of, proceeded to trial, at which time testimony was presented by both parties. It developed that the controversy really only centers on a particular 5 acres, described as West 1/2, North 1/2, Lot 5, Spanish Grant No. 2289 (and this is all that is at issue on this appeal), and the court found that title to the particular 5 acres should be quieted in Butler as against Dacus Lumber Company. The court denied damages to either party. From the decree so entered, appellant brings this appeal.

It might be mentioned that the court, in its opinion deciding the case, found that “Neither of the parties has a good merchantable title, but as between the two, the defendants have the better and I am so holding”.

The stipulation as to the Butler title to this tract reveals:

I. Title to W 1/2 of Lot 5 vested in M. B. Winchester by virtue of a quitclaim deed (July 30, 1890) and a warranty deed (February 12, 1891).

II. W 1/2 N 1/2 of Lot 5 was sold to the State for the nonpayment of the 1902 taxes in Winchester’s name.

III. W 1/2 N 1/2 of Lot 5 was forfeited to the State in 1905.

IV. W 1/2 N 1/2 of Lot 5 was deeded on October 25, 1940, to Joe Somerville by the State Land Commissioner, reciting that the lands had forfeited to the State for the nonpayment of the 1902 taxes.

V. W 1/2 N 1/2 of Lot 5 was ultimately conveyed, through subsequent mesne conveyances, to appellee Butler by quitclaim deed (May 12, 1967).

The deraignment of title filed by appellant reveals that:

I. L. W. Lang conveyed to Frank McArthur by quitclaim deed (December 1943) 21.88 acres described by metes and bounds and containing, among other lands, all of appellee Butler’s five acres.

II. Subsequent mesne conveyances ultimately conveyed to appellant the 21.88 acres under the same description.

The confusion in this litigation is the result of there being two owners of record of the land in question. That circumstance was brought about by the issuance of two deeds by the State Land Commissioner, one to Lang in February 1938 for the “W 1/2 of Lot 2” of the Spanish Grant, based upon the 1928 nonpayment of taxes, and the other to Somerville in October 1940 for the “W 1/2 N 1/2 of Lot 5” of the Spanish Grant. At some unkown time, the confusion was compounded when the descripdon of the land conveyed to the state in 1928 for the nonpayment of the taxes then due in the name of Ball and Peters was changed from the typed “W 1/2 of Lot 2” entry to the ink entry “N 1/2 Lot 5.” There is no evidence of who made this change, nor when it was made. The state’s conveyance in 1938 to Lang made reference only to the original 1928 description in describing the land conveyed (W 1/2 of Lot 2). However, when Lang conveyed to McArthur (one of appellant’s predecessors), he gave a quitclaim deed to “Part of Lots 4 and 5” of the Winchester Partition of private survey No. 2289, Township 6 N Range 9E, the property then being described by metes and bounds. The description used is the same description that appellant used when instituting this suit. Thus, appellant really bases its title on the deed received by Lang from the state.

Let it be remembered however that there is no conveyance from anyone to Lang of anything except the “W 1/2 of Lot 2,” and appellant would seem to be contending that the correction made on the collector’s record, in ink, changing the “W 1/2 of Lot 2” to “N 1/2 Lot 5” really had the effect of conveying to the state the “N 1/2 of Lot 5,” and that such recitation should have been contained in the state deed. We reiterate that there is nothing in the record which shows that the entry made in ink was made before the property was conveyed to the state by the sheriff and collector, and it would really appear that it was not made until after the conveyance to the state for the reason that the state used the original description in conveying to Lang. As pointed out by appellees in their brief, appellant’s deraignment commences only with this deed from Lang, and Lang never received by conveyance any title to any part of Lot 5 of Spanish Grant No. 2289. Also, as mentioned by appellees, if appellant had deraigned title in compliance with Ark. Stat. Ann. § 34-1408 (Repl. 1962), it could not have connected this land to anything except a description of Lot 2, not 5, of Spanish Grant No. 2289.

Appellant argues that no title can be based on the forfeiture to the state for the 1902 taxes for the reason that the state collected taxes on the land from 1904 until 1928, and it is argued that where the state has for a long time demanded and collected taxes on property, and the property-owner has acquiesced therein by paying taxes, there arises a presumption that there was a legal liability to pay the taxes, and this furnishes a strong circumstance from which the court may infer a grant from the state. Koonce v. Woods, 211 Ark. 440, 201 S.W. 2d 748. It is thus argued that the state, having collected the taxes on this land, is presumed in law to have granted same to Winchester, and therefore had nothing to convey to Somerville in 1940. We see no need to discuss this contention for the reason already pointed out, viz, that in obtaining his deed from the state for the 1928 taxes, Lang simply received a deed to the W 1/2 of Lot 2.

Ralph Sloan, an attorney whose practice consists largely of title work, testified on behalf of appellees, and stated that, in his opinion, neither party had good merchantable title, but that he considered Butler’s title better for the reason that Butler did receive a deed to the W 1/2 N 1/2 of Lot 5 while Lang’s deed only referred to the W 1/2 of Lot 2. This was the view taken by the chancellor and we are unable to say that this finding was against the preponderance of the evidence.

Affirmed.

Fogleman, J., not participating.

      The taxes were delinquent in 1912 and unredeemed, were delinquent but redeemed in 1914. In both years the taxes were due in the name of Winchester. Taxes were delinquent and redeemed by Ball and Peters in 1915, and were again delinquent in 1928.


author: George Rose Smith, Justice.

text:
    William V. RICHARDS and the CITY of Little Rock v. Claude W. FERGUSON et al
    5-5878
    479 S.W. 2d 852
    Opinion delivered May 8, 1972

      Lester dr Shults, Joseph C. Kemp and Perry V. Whit-more, for appellants.

      Wilbur C. Bentley and Hugh L. Brown, for appellees.
   George Rose Smith, Justice.

This is a suit brought by the appellees, a group of neighboring homeowners in Little Rock, attacking an ordinance that rezoned two contiguous tracts in the city. The chancellor set aside the ordinance, holding it to be arbitrary and capricious. Inasmuch as the plaintiffs’ right to relief clearly appears to be barred by the doctrine of laches, we find it unnecessary to discuss the facts bearing upon the validity of the ordiance.

The two tracts, one comprising two acres and the other half an acre, were formerly owned by the Arkansas Episcopal Diocese. The tracts were then zoned for one-family residential use. The Diocese decided to sell the property. Richards, the principal appellant, contracted to buy the property, on condition that the larger tract be rezoned for apartment use and the smaller tract for quiet-business use. To that end Richards acted for the Diocese in seeking a reclassification of the property.

The municipal planning commission recommended that the application for rezoning be denied, on the ground that its approval would constitute spot zoning. The applicants took an appeal to the city’s legislative body — the Board of Directors — before whom the applicants contended that the two tracts could not as a practical matter be used as sites for single-family residences, principally because of the proximity of Interstate Highway 30 to the south. Neighboring landowners formed an association to combat the application and appeared at the Board of Directors meeting, where they contested the petition. Despite that opposition the Directors, on November 3, 1969, adopted an ordinance rezoning the tracts.

Richards waited about eight months, during which no suit was instituted by the protestants, before he completed his purchase from the Diocese. He testified that he paid $32,500 for the property, which at the time of trial he considered to be worth $16,000 to $18,000 for one-family residential use and $60,000 for apartment and quiet-business use. Thereafter he incurred substantial additional expense with respect to topographical surveys, engineering studies, development plans, and architectural designs. Finally ready to proceed with construction, he applied for a building permit in July, 1971. About a week later the landowners filed this suit, attacking the validity of the ordinance that had been passed some twenty months earlier.

The governing principles of law are not open to doubt. A suit such as this one seeks an equitable remedy and is subject to those defenses, including laches, that are commonly available in such proceedings. Anderson, American Law of Zoning, § 23.15 (1st ed., 1968). The doctrine of laches is ordinarily applied to situations in which the complainant has stood idly by while the other party has materially changed his position. In Hamilton v. Smith, 212 Ark. 893, 208 S.W. 2d 425 (1948), the plaintiff, who claimed an easement, delayed filing suit for an injunction until the defendant had spent about $2,000 toward the construction of a house that assertedly encroached upon the easement. In denying the plaintiff’s claim to affirmative relief we pointed out that “equity will lend its aid only to those who are vigilant in asserting their rights. Sims v. Petree, 206 Ark. 1023, 178 S.W. 2d 1016. This principle is especially applicable where, as here, the suitor has sought to invoke a drastic remedy such an injunction, and it has often been held to bar one who waits until another party has expended a considerable sum. . .before asking an injunction against the completion and maintenance of such a structure.”

The principles announced in that opinion, and in many others to the same effect, are controlling here. The protesting homeowners had notice of the application for rezoning and in fact actively opposed it, without success. Upon the passage of the ordinance reclassifying the property the next move was up to the protestants, for the Diocese and Richards could not seek redress in the courts with respect to an ordinance giving them all the relief they sought. Nevertheless, Richards waited eight months before completing his purchase. He then paid, according to his testimony as an experienced real estate dealer, at least $14,000 more than the property was worth as originally classified. Still the protestants took no action. Richards then expended additional sums in going ahead with his plans to develop the property. At last, when Richards had reached the final step of applying for a building permit, the protestants took affirmative action to invalidate the ordinance that had been passed twenty months earlier. No excuse for their protracted delay is offered. In the circumstances a court of equity must hold that they have slept upon their rights for such an unreasonable length of time that they are precluded from obtaining affirmative relief.

Reversed and dismissed.


author:
George Rose Smith, Justice. Carleton Harris, Justice, John A. Fogleman, Justice,
      J. Fred Jones, Justice,

text:
    Michael E. MORRIS v. STATE of Arkansas
    5674
    479 S.W. 2d 860
    Opinion delivered May 8, 1972

      Jack Holt Jr. and Jack Sims, for appellant.

      Ray Thornton, Atty. Gen., by: John D. Bridgforth, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Charged with the unlawful possession of LSD, a hallucinogenic drug, the appellant was found guilty and sentenced to a $250 fine and to 12 months imprisonment. His principal contention for reversal is that the trial court erred in refusing to suppress evidence obtained by means of a search warrant assertedly issued without lawful authority.

That contention must be sustained. The search warrant in question, issued' by a municipal judge, directed officers to search the appellant’s apartment for LSD, marihuana, and other specified drugs. Under the authority of that warrant the police entered the apartment and seized certain drugs, which were received in evidence at the trial. In the recent case of Grimmett v. State, 251 Ark. 270-A, 476 S.W. 2d 217 (1972), which was decided after the present case was tried, we held on rehearing that at the time the search warrant in the Grimmett case was issued, there was neither common law nor statutory authority for the issuance of a search warrant for contraband drugs. The search warrant in that case, as in the case at bar, was issued before the effective date of Act 123 of 1971. Ark. Stat. Ann. § 43-205 (Supp. 1971). Under the Grimmett opinion, which is controlling here, the trial court erred in refusing to suppress the evidence obtained by means of the search warrant.

We find no other reversible error. The defendant’s requested instruction upon the State’s burden of proof was fairly covered by the court’s instruction upon that subject. We need not pass upon the sufficiency of the evidence, for the State’s proof will necessarily be different if the case is retried. There is no reason to think that other asserted errors will recur upon a new trial.

Reversed.

Holt, J., not participating. Special Justice J. S. Brooks joins in the majority opinion.

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

Carleton Harris, Justice,

dissenting. Along with the other two who are dissenting in this case, I concurred in the case of Grimmett v. State, 251 Ark. 270-A (substituted opinion on rehearing February 21, 1972) 476 S.W. 2d 217. like these two justices, I did not feel that the constitutional question should have been reached, and I certainly do not feel that that case is controlling in the instant appeal. Grimmett, as a doctor, had a right to have drugs in his possession, and it was only because of a violation of regulations that he became embroiled with the law, viz, the dispensing of such drugs contrary to law, and the failure to keep proper records. Here, Morris had no such right; drugs in his possession were clearly contraband.

The majority opinion in this case is predicated on the fact that they find there was no statutory authority, or common law authority, to obtain the search warrant. Ark. Stat. Ann. § 82-2109 (Supp. 1971) provides that any officer or employee of the State Health Department designated by the State Health Officer to conduct examinations, investigations relating to depressant or stimulant drugs may, when authorized by the State Health Officer, inter alia, execute and serve search warrants. In Grimmett, the court majority stated that the literal language of the statute did not authorize the issuance of a search warrant; that strict construction was required when a statute was at variance with the common law, and accordingly there was no authority to issue the warrant. This was a part of my reason for concurring in Grimmett, and I consider the holding to be highly technical — too technical. The chapter (§§ 82-2101 through 82-2109) is entitled “Arkansas Drug Abuse Control Act”, and was passed in 1967. The purpose of the Act undoubtedly was control of the sale, distribution, manufacture, and possession of depressant and stimulant drugs and counterfeit drugs. The authority in § 82-2109 was necessary to enforcement of the provisions of the Act. The exact language in the point under discussion is “Execute and serve search warrants and arrest warrants”. Webster’s Third New International Dictionary defines the word “Execute” as “To put into effect; carry out fully and completely*** perform what is required to give validity to”. It is obvious to me that the word “execute” is used in the sense of denoting acts necessary before serving a search warrant, viz, execution of an affidavit and obtaining the warrant. Why would the General Assembly have authorized these officers to serve search warrants, but not to obtain them? This would not only be ridiculous — but a totally futile gesture, for it is certain that a warrant cannot be served until it is issued. In my opinion the language is a clear authorization for the issuance and service of the search warrant. Under the technical construction in Grimmett, the majority might well also say that § 82-2109 only authorizes officers or employees of the State Health Department to perform the enumerated acts, but certainly, in my view, if employees of the State Health Department are authorized to obtain and serve search warrants, general law enforcement officers, whose primary business is to enforce the law, would have the same right.

I respectfully dissent.

John A. Fogleman, Justice,

dissenting. This case presents another of the myriad questions which have arisen pertaining to searches and seizures as a result of the exclusionary rule toretold in Clubb v. State, 230 Ark. 688, 326 S.W. 2d 816 and made applicable to the states in Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, 84 A.L.R. 2d 933 (1961). Precedent governing these questions is sparse, simply because they were not important when the evidence would not be excluded. I have long been of the opinion that there must be either statutory or common law authority for the issuance of a search warrant, in order to sustain a search and seizure against direct attack. See concurring opinion, Ferguson v. State, 249 Ark. 138, 148, 458 S.W. 2d 383. I do not believe that the decision in Grimmett v. State, 251 Ark. 270A (on rehearing Feb. 21, 1972), 476 S.W. 2d 217 reached the correct result. I have already indicated that I do not feel that it is binding as precedent, because the question decided should not have been reached, there having been a non-constitutional ground upon which the decision should have rested. See concurring opinion Grimmett v. State, supra. As I read Grimmett, the court held that any search and seizure based upon a warrant for which there was not specific statutory or common law authority was constitutionally unreasonable and that there was no such authority to search for substances coming within the prohibitions of the Arkansas Drug Abuse Control Act. My first disagreement with the majority in Grimmett is in the holding that an unauthorized search is constitutionally unreasonable. I agree with the Supreme Court of the United States, per Black, J., that a search authorized by state law may be constitutionally unreasonable and one not authorized by state law may be constitutionally reasonable. Cooper v. California, 386 U.S. 58, 17 L. Ed. 2d 730, 87 S. Ct. 788 (1967). Grimmett could have and should have been decided upon the simple question whether there was any authority for the issuance of the search warrants.

My next disagreement with the majority holding in Grimmett is its unwarranted limitation of the concept of the common law?. Actually, the majority there made no exploration of the common law for authority at all. The opinion is based upon the nonexistence of any authorizing statute within the purview of our adoption of British statutes of a general nature. See Ark. Stat. Ann. § 1-101; Smith v. Smith, 219 Ark. 304, 241 S.W. 2d 113. Our adoption of the decisional common law was not limited to that existing on the date specified in the limitation on statutes. Our adopting statute was passed December 6, 1837. See Moore v. Sharpe, 91 Ark. 407, 121 S.W. 341, 23 L.R.A. (n.s.) 937; Small v. Strong, 2 Ark. 198. Although we adopted the common law of England, we have recognized that there are many sources upon which we base our determination of that law, among which are cases from other American jurisdictions. State v. Phillips Petroleum Co., 212 Ark. 530, 206 S.W. 2d 771.

To illustrate the wider breadth of the common law, we followed the common law rule that it is clearly the duty of a railroad company to give notice of the approach of trains at all points of known or reasonably apprehended danger in Missouri Pacific R. R. Co. v. McKinney, 189 Ark. 69, 71 S. W. 2d 180. Certainly there were no English statutes or decisions on this subject in 1607. We have held that in construing a statute, we will take into account the common law in force at the time it was passed. State v. Pierson, 44 Ark. 265.

The cited cases are illustrative of the general rule as to the scope of the common law. Statements in the texts appropriately identify the common law. In 15A C.J.S., Common Law, pp. 42, 43, 45, & 52 are found the following appropriate comments:

The common law in the several states consists of the common or unwritten law of England as it existed in 1607, when the colonists from England settled in America, or in some states at a later date, in so far as that law is applicable to the new surroundings and conditions and has not been abrofated by statute, and as it has been applied and modified by the courts of this country up to the time it became a rule of decision in the states. (Sec. lc)
The common law is one of the forms of law, and is the embodiment of principles and rules inspired by natural reason, an innate sense of justice, and the dictates of convenience, and voluntarily adopted by men for their government in social relations. The authority of its rules does not depend on positive legislative enactment, as discussed supra, but on general reception and usage, and the tendency of the rules to accomplish the ends of justice. However, except where altered by statute, it is just as much a part of the local jurisprudence as are enactments of the legislature, and where a principle of such law has entered into our form of government, it is controlling, until by legislation express in its terms it is modified or negatived by the substitution of a new declaration on the subject. (Sec. 2)
The principles of the common law are developed by, and stated in, the decisions of the courts, subsequent declarations merely adding certainty to the first statement. Thus, the common law is said after all to be but the accumulated expressions of the various judicial tribunals in their efforts to ascertain what is right and just between individuals with respect to private disputes. (Sec. 2)
As used in state statutes adopting the common law, the expression “common law of England” has been construed to mean the common law as declared by the courts of the different states of the United States, and not solely the law as declared by the courts of England. On the other hand, it has been held that this expression, as used in the statute, designates the English common law as interpreted as well in the English courts as in the courts of such of the states of the Union as have adopted the English common law. (Sec. lib)

The following excerpts are taken from 15 Am. Jur. 2d, Common Law pp. 793, 795, 801:

The common law, as frequently defined, includes those principles, usages, and rules of action applicable to the government and security of persons and property which do not rest for their authority upon ány express or positive statute or other written declaration, but upon statements of principles found in the decisions of the courts. As distinguished from statutory or written law, it embraces that great body of unwritten law founded upon general custom, usage, or common consent, and based upon natural justice or reason. It may otherwise be defined as custom long acquiesced in or sanctioned by immemorial usage and judicial decision. (Sec. 1)
In its broadest aspect the common law may be said to be the general Anglo-American system of legal concepts and the traditional technique which forms the basis of the law of the states which have adopted it. (Sec. 1)
The common law of England, in its broadest significance, is the basic component of the common law as adopted by American courts. But the judicial decisions of the courts of England are not deemed to be a part of the common law, but merely expositions thereof. Hence, the courts of this country, in order to ascertain the principles and rules of the common law, may look to the decisions of other states of the Union, as well as to those of the English courts. (Sec. 6)

In 1 Bouvier’s Institutes 50, Title IX, Chapter II, Sec 1, Par. 121 (1858), we read:

The common law is a system of rules which have been used by the universal consent and immemorial practice of the people, without receiving the express authority of the legislative power. It is derived principally from two sources, the common law of England, and the practice and decisions of our own courts. No general rule has been adopted to ascertain what part of the English common law is valid and binding. To run the line of distinction is a subject of embarrassment to the courts, and the want of it a great perplexity to the student.
Customs from a part of the common law. A custom is a usage which has acquired the force of law. It derives its binding authority from the tacit consent of the legislature and the people; it follows, therefore, that there can be no custom in relation to a matter regulated by statute. Law cannot be established or abrogated, except by the sovereign will; but this will may be expressed, or implied or presumed, and whether it manifests itself by words or by acts is of little consequence.
To make a good custom, it must be public, peaceable, uniform, general, continued, reasonable and certain, and it must have continued for a “time whereof the memory of man runneth not to the contrary.” It then acquires the force of law.

It still seems clear to me that there is common law authority for the issuance of search warrants for burglary tools, stolen or forfeited property, any property which it is unlawful to possess, weapons or instrumentalities of crime and articles of such nature and character. See my concurring opinion in Ferguson v. State, supra. In support of this position, I quote from Gouled v. United States, 255 U.S. 298, 41 S. Ct. 261, 65 L.Ed. 647 (1921):

All of this is abundantly recognized in the opinions of the Boyd Case, 116 U.S. 616, 29 L. ed. 746, 6 Sup. Ct. Rep. 524, and the Weeks Case, 232 U.S. 383, 58 L. ed. 652, L.R.A. 1915B, 834, 34 Sup. Ct. Rep. 341, Ann. Cas. 1915C, 1177, in which it is pointed out that, at the time the Constitution was adopted, stolen or forfeited property, or property liable to duties, and concealed to avoid payment of them, excisable articles, and books required by law to be kept with respect to them, counterfeit coin, burglars’ tools and weapons, implements of gambling, “and many other things of like character,” might be searched for in home or office, and, if found, might be seized, under search warrants lawfully applied for, issued, and executed.
Although search warrants have thus been used in many cases ever since the adoption of the Constitution, and although their use has been extended from time to time to meet new cases within the old rules, nevertheless it is clear that, at common law and as the result of the Boyd and Weeks Cases, supra, they may not be used as a means of gaining access to a man’s house or office and papers solely for the purpose of making search to secure evidence to be used against him in a criminal or penal proceeding, but that they may be resorted to only when a primary right to such search and seizure may be found in the interest which the public or the complainant may have in the property to be seized, or in the right to the possession of it, or when a valid exercise of the police power renders possession of the property by the accused unlawful, and provides that it may be taken. Boyd Case, 116 U.S. 623, 29 L. ed. 746, 6 Sup. Ct. Rep. 524.
There is no special sanctity in papers, as distinguished from other forms of property, to render them immune from search and seizure, if only they fall within the scope of the principles of the cases in which other property may be seized, and if they be adequately described in the affidavit and warrant. Stolen or forged papers have been so seized. (Langdon v. People, 133 Ill. 382, 24 N.E. 874), and lottery tickets, under a statute prohibiting their possession with intent to sell them (Com. v. Dana, 2 Met. 329), and we cannot doubt that contracts may be so used as instruments or agencies for perpetrating frauds upon the government as to give the public an interest in them which would justify the search for and seizure of them, under a properly issued search warrant, for the purpose of preventing fur ther frauds.

Basing its decision upon the recognition in Gouled that property held for committing crime is the valid object of a properly issued search warrant, because of the public’s interest in prevention and detection of crime, the Court of Appeals of Kentucky held that articles used to further acts of prostitution were proper subjects of a search warrant over the objections that they were merely evidential, and thus not properly subject to search and seizure. Schweinefuss v. Commonwealth, 395 S.W. 2d 370 (Ky. 1965).

In People v. Thayer, 63 Cal. 2d 635, 47 Cal. Rpt. 780, 408 P. 2d 108 (1965), cert. denied 384 U.S. 908, 86 S. Ct. 1342, 16 L.Ed. 2d 361 (1966), the California Supreme Court (in an opinion by Chief Justice Traynor) pointed out that Gouled recognized that instruments used in the commission of crime may be seized because of the public’s interest in preventing their use in subsequent crimes. There is also a tacit recognition there that contraband and the fruits of crime may be seized. In Thayer, the records of a physician used in drawing up fraudulent medical case claims which were submitted to the Bureau of Public Assistance were seized.

In U. S. v. Thomson, 113 F. 2d 643, 129 A.L.R. 1291 (7 th Cir. 1940), on the authority of Gouled, it was held that the test of validity was not the nature of the property seized but whether it was used in perpetrating a crime.

In our own case of Albright v. Karston, 206 Ark. 307, 176 S.W. 2d 421, discussed in my opinion in Ferguson, the language quoted, whether dictum or not is suggestive, not of authority to issue search warrants for anything for which a search is constitutionally permissible, but of authority of magistrates to issue search warrants for devices used in the commission of crimes and for things which are subject to seizure by the state.

It is said that the use of search warrants, totally unknown to the original common law, crept into the common law as basis for searching for stolen goods by imperceptible practice. Entick v. Carrington, 19 How. St. Tr. 1030, 96 Eng. Rep. 807 (1765). This is the manner in which all common law developed. That practice, i.e., search warrants for stolen goods, was developed upon the basis of the interest of the owner in the property to be seized. Our authorities show that the practice as to contraband (those things which it is illegal to possess) and instrumentalities of crime developed for the interest of the government in the property to be seized.

Examination of the Arkansas Drug Abuse Control Act, then in effect clearly makes the material seized under the warrant here both contraband and the instrumentality of a crime. The possessing of the material was a prohibited act. Ark. Stat. Ann. §§ 82-2103 (c), 82-2107 (c) (Supp. 1971). It was by the Act declared contraband and subject to seizure and forfeiture, Ark. Stat. Ann. § 82-2105 (Supp. 1971). It was the duty of the prosecuting attorney to cause “appropriate proceedings” to be instituted in the proper courts upon report of a violation without delay, Ark. Stat. Ann. § 82-2106 (Supp. 1971). Officers and employees of the State Health Department, upon designation and authorization of the State Health Officer, were empowered to execute and serve search warrants, arrest warrants, and seizure process. Ark. Stat. Ann. § 82-2109 (Supp. 1971)

In view of the statutory language and the evidence of existing common law, it seems to me to be contrary to reason to say that a proper judicial officer had no authority to issue a search warrant in this case.

I would affirm the judgment.

J. Fred Jones, Justice,

dissenting. I do not agree with the majority opinion in this case. I agree that we have no search warrant statute in Arkansas directed specifically to the possession of LSD, but I am of the opinion such statute was not necessary to the validity of search and seizure conducted in this case. It is true that after more than 100 years in the recent case of Grimmett v. State, 251 Ark. 270A, 476 S.W. 2d 217, we said: “Thus we must conclude that there is no common law authority in this State for the,issuance of a search warrant for contraband.” I consider this statement as obiter dictum in Grimmett v. State, and I consider it inapplicable to the case at bar even if it were not dictum. The factual distinction between this case ,and Grimmett was the reason I joined the, concurrence in Grimmett.

As I interpret the effect of the majority opinion in the case at bar, based as it is on Grimmett, supra, now after more than 100 years of legal history in Arkansas, we conclude that all searches under warrants are unreasonable within the prohibition of our Constitution unless there is a specific statute in Arkansas, or an Act of the English Parliament , passed prior to the founding of Jamestown in 1607, specifically authorizing the specific search.

In Grimmet, supra, the court points out that the search warrants for contraband became a part of the common law of England by an Act of Parliament in 1622. It is then pointed out in Grimmett that the common law of England was adopted at the founding of Jamestown on March 24, 1607, and concludes, in effect, that we just missed having common law authority for contraband search warrants by 15 years and therefore there was no authority for the issuance of the search warrant in the Grimmett case; and the majority in the case at bar concludes that since we so held in the Grimmett case, the appellant Morris must also go free.

The majority in Grimmett points out how the search warrant law of England pertaining to stolen property became imbedded in the common law by “imperceptible practice,” but they completely overlook the imperceptible practice in these United States including Arkansas where only unreasonable searches are prohibited by the Constitution under the police power of the state, and where all powers are reserved to the people not prohibited by the Constitution.

As I interpret the majority opinion it would apply the term “contraband” to anything the possession of which is prohibited by law, and on the basis of Grimmett v. State, supra, would send law enforcement officers to the legislature rather than to the courts of this state for authority to search out and seize narcotic drugs destined for the illegal market even when illegally possessed, packaged, and stored by known drug pushers within the sanctity of their private domains.

It is my view that the majority fails to distinguish between common law “contraband” and hard narcotic drugs in the possession of individuals in strict violation of the criminal laws. It is perfectly obvious that the majority fails to distinguish Grimmett v. State, supra, from the case at bar. Grimmett is distinguished from the case at bar in the first paragraph of that opinion where we said:

“Grimmett, a dispensing physician of Waldo, Arkansas, was convicted of failing to maintain a complete and accurate record of drugs, contrary to the Arkansas Drug Abuse Control Act, Ark. Stat. Ann. § 82-2101, et. seq. (Supp. 1971.”

Grimmett was not charged with the unlawful possession of drugs in violation of the law. He had the perfect right to have the drugs he did have in his possession. He was charged and convicted for failure to keep proper records of what he did with the drugs he legally had in his possession. Even the first portion of the statute under which Grimmett was charged distinguishes that case from the case at bar. The statute under which Grimmett was charged, Ark. Stat. Ann. § 82-2107 (a) (Supp. 1971) provides:

“No person shall manufacture, compound or process [not possess] in this State any depressant or stimulant drugs, except that this prohibition shall not apply to the following persons whose activities in connection with any drug are as specified in this subsection:
* * *
(a) (5) Practitioners licensed in this State to prescribe or administer depressant or stimulant drugs, while acting in the course of their professional practice.”

As above stated, Grimmett was convicted under a separate section of the above statute for failure to maintain a complete and accurate record of drugs and although he had a perfect right to have the drugs in his possession, his drugs as well as his records were taken under a search warrant for the purpose of measuring his records against his supply of drugs, and his drugs as well as his records were used in evidence against him at his trial.

In the case at bar the appellant Morris was not a licensed physician not was he charged with the manufacture, compounding or processing of stimulant drugs in this state. Morris was charged with the possession of LSD in violation of Ark. Stat. Ann. § 82-2110 (Supp. 1971) which simply provides:

“It shall be unlawful for any person, except as provided herein, to use, possess, have in one’s possession, sell, exchange, give or attempt to give to another, barter or otherwise dispose of: * * * LSD # # #>>

In the case at bar, Morris maintained an apartment frequented by young people of unusual demeanor and in unusual numbers. A police officer talked with Morris who appeared at his door armed with a pistol and the officer had reasonable grounds to suspect that Morris possessed LSD in his apartment. A search warrant was issued and served, LSD was found in Morris’ possession. Morris was charged with possession and was convicted. This case is quite different on its facts from Grimmett.

In the 1946 case of Harris v. United States, 331 U. S. 145, the defendant was convicted for the unlawful possession, concealment and alteration of notice of classification cards in violation of the Selective Service Act. In that case the court said:

“. . .[T]he objects sought for and those actually discovered were properly subject to seizure. This Court has frequently recognized the distinction between merely evidentiary materials, on the one hand, which may not be seized either under the authority of a search warrant or during the course of a search incident to arrest, and on the other hand, those objects which may validly be seized including the instrumentalities and means by which a crime is committed, the fruits of crime such as stolen property, weapons by which escape of the person arrested might be effected, and property the possession of which is a crime. * * *
The dangers to fundamental personal rights and interests resulting from excesses of law-enforcement officials committed during the course of criminal investigations are not illusory. This Court has always been alert to protect against such abuse. But we should not permit our knowledge that abuses sometimes occur to give sinister coloration to procedures which are basically reasonable.” (Emphasis added).

In Camden County Beverage Co. v. Blair, 46 F. 2d 648, revenue agents forcibly entered and without a search warrant took samples from the beverage plant, and in that case the court said:

“While it is true that generally the Fourth and Fifth Amendments may be construed together, there is a clear distinction between the seizing of contraband articles, or property illicitly possessed, and the obtaining of papers or writings which may be produced as evidence against the possessor in a criminal, penal, or forfeiture proceeding. The former may be seized on a valid search warrant, or without warrant, if the circumstances justify it; whereas the seizure of the latter, unless under exceptional circumstances, by any means is always unlawful.
In Gouled v. United States, 255 U. S. 298, 41 S. Ct. 261, 65 L. Ed. 647, Mr. J. Clarke, who delivered the opinion of the court said:
‘Although search warrants have thus been used in many cases ever since the adoption of the Constitution, and although their use has been extended from time to time to meet new cases within the old rules, nevertheless it is clear that, at common law and as the result of the Boyd and Weeks Cases, supra, they may not be used as a means of gaining access to a man’s house or office and papers solely for the purpose of making search to secure evidence to be used against him in a criminal or penal proceeding, but that they may be resorted to only when a primary right to such search and seizure may be found in the interest which the public or the complainant may have in the property to be seized, or in the right to the possession of it, or when a valid exercise of the police power renders possession of the property by the accused unlawful and provides that it may be taken. Boyd Case [116 U. S.] pp. 623, 624 S. Ct. 524, 29 L. Ed. 746.’ Page 309 of 255 U. S., 41 S. Ct. 261, 265.” (Emphasis supplied).

In the 1926 New York case of People v. Defore, 211 N. Y. S. 134, the defendant was convicted of criminally carrying and possessing a balckjack. The court, citing from Boyd v. United States, 116 U.S. 616, said:

“ ‘The search for and seizure of stolen or forfeited goods, or goods liable to duties and concealed to avoid the payment thereof, are totally different things from a search for and seizure of a man’s private books and papers for the purpose of obtaining information therein contained, or of using them as evidence against him. The two things differ toto coelo. In the one case the government is entitled to the possession of the property; in the other it is not. The seizure of stolen goods is authorized by the common law; and the seizure of goods forfeited for a breach of the revenue laws, or concealed to aviod the duties payable on them, has been authorized by English statutes for at least two centuries past, and the like seizures have been authorized by our own revenue acts from the commencement of the government. The first statute passed by Congress to regulate the collection of duties, the Act of July 31, 1789, 1 Stat. 29, 43, contains provisions to this effect. As this act was passed by the same Congress which proposed for adoption the original amendments to the Constitution, it is clear that the members of the body did not regard searches and seizures of this kind as 'unreasonable,’ and they are not embraced within the prohibition of the Amendment. So, also, the supervision authorized to be exercised by officers of the revenue over the manufacture or custody of excisable articles, and the entries thereof in books required by law to be kept for their inspection, are necessarily excepted out of the category of unreasonable searches and seizures.’ ”

In addition to the language from Gouled v. United States, 255 U. S. 298, cited in Camden County Beverage Co. v. Blair, supra, the Court in Gouled also said:

“There is no special sanctity in papers, as distinguished from other forms of property, to render them immune from search and seizure, if only they fall within the scope of the principles of the cases in which other property may be seized, and if they be adequately described in the affidavit and warrant. Stolen or forged papers have been so seized. Langdon v. People, 133 Illinois, 382, and lottery tickets, under a statute prohibiting their possession with intent to sell them, Commonwealth v. Dana, 2 Mete. 329, and we cannot doubt that contracts may be so used as instruments or agencies for perpetrating frauds upon the Government as to give the public an interest in them which would justify the search for and seizure of them, under a properly issued search warrant, for the purpose of preventing further frauds.”

In the 1966 case of Cooper v. California, 386 U. S. 58, the court said:

“. . . [T]he question here is not whether the search was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment. Just as a search authorized by state law may be an unreasonable one under that amendment, so may a search not expressly authorized by state law be justified as a constitutionally reasonable one.
* * *
It is no answer to say that the police could have obtained a search warrant, for ‘[t]he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.’ United States v. Rabinowitz, 339 U.S. 56, 66.” (Emphasis supplied).

To summarize in two short sentences: The majority hold that there was no constitutional or statutory authority for the issuance of the search warrant in this case. It is my position that there was no constitutional or statutory prohibition against it.

I would affirm the judgment.

      As to this recognition, see People v. Potter, 240 Cal. App. 2d 621, 49 Cal. Rptr. 892 (1966), cert. denied 388 U.S. 924, 87 S. Ct. 2118, 18 L. Ed. 2d 1374 (1967)


text:
    John Edward VAUGHN and Bobby Dean WILKINS v. STATE of Arkansas
    5709
    470 S.W. 2d 873
    Opinion delivered May 8, 1972

      William C. McArthur, for appellants.

      Ray Thornton, Atty. Gen., by; Henry Ginger, Deputy Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellants, Vaughn and Wilkins, were charged with burglary and grand larceny. The State alleged that on the night of January 21, 1971, they broke into a laundry pick-up station in Little Rock and carried away a safe. They appeal from a judgment finding them guilty and sentencing them to the penitentiary. Wilkins questions the sufficiency of the evidence; Vaughn argues other points for reversal.

First: Wilkins’ appeal. A witness who lived near the pick-up station heard a noise at about 11:15 p.m., looked out, and saw two or three persons pushing an object down the street. The witness dressed hurriedly, got in his car, and was able to note the license number of another car as it left the scene. The police were called, who found that the station had been forcibly entered and a safe taken away. The officers ascertained by radio that the suspected car was owned by Bertha Jean Wakefield. They arranged for her house, some miles away, to be watched until the car returned. Within about an hour the arrival of the car was reported.

' A number of officers went to Mrs. Wakefield’s house, entered with her permission, and searched the premises. They found Wilkins under a bed and Vaughn hiding in a closet. The car was searched, but no trace of the missing safe was discovered. Mrs. Wakefield testified that she had lent the vehicle to Vaughn that afternoon. Vaughn, accompanied by Wilkins, brought the car back at about 12:30 that night. The men had whiskey and hot sandwiches with them.

Upon the foregoing proof we cannot sustain Wilkins’ conviction. All that the State proved was that Wilkins was with Vaughn in Mrs. Wakefield’s car more than an hour after the crime and that Wilkins hid himself when the officers came in the house. No witness identified Wilkins as having been at the scene of the burglary. In our opinion the evidence, wholly circumstantial, falls short of establishing anything more than a strong suspicion of Wilkins’ guilt. In Washington v. State, 251 Ark. 487, 473 S.W. 2d 157 (1971), we set aside a conviction based upon somewhat similar evidence, although there the State’s proof was slightly stronger than it is here. Thus Wilkins is entitled to a new trial.

Second: Vaughn’s appeal. Vaughn does not question the sufficiency of the evidence, not only because the suspected car had been in his possession but also because his confession of guilt was received in evidence. Vaughn relies instead upon asserted procedural errors.

He first contends that the trial judge should have sustained the defendants’ request that the prospective witnesses be excluded from the courtroom during trial. A dozén witnesses testified. When the State had concluded its direct examination of its first witness, a defense lawyer asked for the rule of exclusion, explaining that he had not been aware that all the witnesses were in the courtroom. The court denied the request on the ground that it came too late, that it should have been made at the beginning of the trial.

That ruling was error. We have two statutes on the subject. The older one is part of the Civil Code, Ark. Stat. Ann. § 28-702 (Repl. 1962), and provides that the trial judge “may” exclude from the courtroom any witness of the adverse party. That statute was formerly followed in criminal cases, but its application was held to be discretionary with the trial court. Trammell v. State, 193 Ark. 21, 97 S.W. 2d 902 (1936); Mikel v. State, 182 Ark. 924, 33 S.W. 2d 397 (1930).

By Act 243 of 1955, the title of which referred to the civil statute, the legislature provided that if the accused or his attorney requests it, the judge “shall” exclude any witness. Ark. Stat. Ann. § 43-2021 (Repl. 1964). The change from “may” to “shall” indicates a legislative intention to make the rule mandatory in criminal trials. Of course there might be instances in which a denial of the request would not appear to be prejudicial, but that is not the situation here. The State called as witnesses four police officers, who apparently heard one another testify. We must regard the error as having been prejudicial, for we cannot say with confidence that it was not. Connelly v. State, 232 Ark. 297, 335 S.W. 2d 723 (1960).

We find no error in the court’s ruling that Vaughn’s confession was voluntary. No coercion is shown, except that Vaughn was questioned intermittently for about twelve hours, beginning at 8:30 a.m. on the morning after his arrest. We need not set out the evidence in detail, for the proof upon a retrial may be materially different. Nor do we discern either any want of probable cause for Vaughn’s arrest or any prejudice flowing from the officers’ testimony that he was arrested at Mrs. Wake-field’s house.

Reversed.


author: Lyle Brown, Justice.

text:
    James E. LILE et al v. PULASKI COUNTY BOARD OF EQUALIZATION et al
    5-5893
    479 S.W. 2d 856
    Opinion delivered May 8, 1972

      Ray Thornton, Atty. Gen., by: James A. Neal, Asst. Atty. Gen., for appellees.
   Lyle Brown, Justice.

This is an appeal from a circuit court judgment which affirmed the levy of real property taxes for 1970 on a lot in downtown Little Rock. The assessor’s office valued the property for tax purposes at $74,684. That figure was approved by the board of equalization and then by the circuit court. The appellants here contend that the judgment of the circuit court is not supported by substantial evidence and that the decision is contrary to law.

Lot 5 in Block 8, original City of Little Rock, is a 50’ x 140’ lot facing Main Street. It is on the east side of the street and is an inside lot between Seventh and Eighth Streets. For valuation purposes it is a blacktopped lot used for parking. It produces an income of $2,400 a year. (There is a very small concrete block building on the property but it seems agreed that it makes no contribution to the value of the lot for its highest and best use.)

The only witness for the taxing authority was L. E. Tedford, tax assessor. He has had several years experience in the tax office. Mr. Tedford did not perform his apraisal with the methods commonly used, and many times approved, by expert land appraisers. He cited some sales in the same general area but did not purport to say that those sales were comparable. He testified that the present appraisals in downtown Little Rock are based on the 1957 report of Wilkinson Associates, an outside professional appraisal firm. Tedford emphasized that the method used by Wilkinson was to establish a front foot value in each block. He never did testify what he considered to be the “true market value in money,” which is the criterion for assessing real property. Ark. Stat. Ann. § 84-428 (Repl. 1960). Tedford said that in his opinion the assessment was “fair and equal” but as we read his testimony we conclude that he was in effect saying that the assessment was fair and equal when compared to the front foot assessment of property in that area. We do not think appellee produced substantial evidence that subject property had a true market value of $74,684.

On the other hand appellants produced very persuasive evidence that the market value of the property was $30,000. In 1969 the then owners listed the property with a reputable real estate brokerage firm. The asking price was $35,000 but there were no takers. Later on, an attorney for one of the owners was authorized to try to find a buyer. He had the property appraised. Floyd Fulkerson, whose qualifications as an appraiser were not questioned, appraised the property at $30,000. Sam Reynolds, another qualified appraiser, reached the same figure. Burton Dougan, still another appraiser thoroughly versed in downtown values, arrived at the same valuation. Mr. Jim Lile, an investor, had. the property appraised and purchased it for $30,000. Lile’s appraiser was of the opinion that Lile “was not finding a bird’s nest on the ground” and advised that it would be a gamble to pay $30,000 for it. The sale was approved by the probate court, one of the then owners being an incompetent.

Reversed with directions that the value of the property for the taxable year 1970 be fixed at $30,000.


text:
    George JOHNSON Jr. v. STATE of Arkansas
    5701
    479 S.W. 2d 872
    Opinion delivered May 8, 1972

      Sloan, Ragsdale & Dishongh, for appellant.

      Ray Thornton, Atty. Gen., by: Henry Ginger, Deputy Atty. Gen., for appellee.
   Lyle Brown, Justice.

In a consolidated trial appellant was convicted of burglary and assault with intent to kill. He appeals on the grounds that the verdicts were contrary to the law and the evidence.

First, we shall succintly state the evidence in the light most favorable to the State. At about 10:30 o’clock on the night of May 22, 1970, William A. Cisco closed the grocery store where he worked and, together with his wife and daughter, proceeded to drive to their home on East Roosevelt Road in Little Rock. The daughter entered the house first to unlock the doors. As Mr. Cisco entered the house he heard an alarming noise. He ran through the house and when he got to the back room, a den, he was confronted by an armed Negro male who was holding Cisco’s daughter in front of him. The Negro shouted “get back you white s.o.b. or I’ll kill you.” When the daughter cried out for help the father entered the den and the appellant and Cisco began exchanging shots. Both appellant and Mr. Cisco were hit by bullets. When appellant had apparently emptied his gun he ran out the back door with Cisco in pursuit. Appellant was not then apprehended. He shortly entered a local hospital under an assumed name. He had been shot twice.

The Cisco home was found to be in disarray. Entrance was gained by removing a back screen and breaking a window. (Appellant sustained a cut between his thumb and index finger.) A “piggie bank” had been broken and some coins were found on the floor. At - the hospital it was found that appellant was in possession of a large quantity of coins.

Both Mr. Cisco and his wife made positive identification of appellant. They said they did not see any other stranger in the house.

First, appellant contends that the State failed to prove a specific intent to kill Mr. Cisco. We disagree. The conditions under which intent may be implied from facts and circumstances are well set out in Lewis v. State, 209 Ark. 51, 189 S.W. 2d 641 (1945):

While the intent to kill cannot be implied as a matter of law, it may be inferred from facts and circumstances of the assault, such as the use of a deadly weapon in a manner indicating an intention to kill, or an act of violence which ordinarily would be calculated to produce death, or great bodily harm. In determining whether or not the intent to kill should be inferred, the trier of the facts may properly consider the character of the weapon employed and the way it was used, the manner of the assault and the violence attendant thereon; the nature, extent and location on the body of the wound inflicted, if any; the state of feeling existing between the parties at and anterior to the difficulty; statements of the defendant, if any; and all other facts and circumstances tending to reveal defendant’s state of mind.

When the recited statement of law is put alongside the facts in the case at bar it is not at all difficult to conclude that there was substantial evidence from which the jury could reasonably infer intent.

Likewise, there is ample evidence from which the jury could rightfully infer that appellant entered the house with the intent to commit larceny (which was necessary to establish burglary). Sanders v. State, 198 Ark. 880, 131 S.W. 2d 936 (1939); Scates and Blaylock v. State, 244 Ark. 333, 424 S.W. 2d 876 (1968). In the case at bar, entry was gained through a broken window, the house had been ransacked, appellant admitted he was in a house known not to be his own, and a large quantity of coins was found on his person.

We have not overlooked the evidence tendered by appellant. He testified that he was picked up by a friend at a tíme when appellant was under the influence of narcotics; that when he entered the Cisco home by way of the door, he thought he was entering the friend’s home by invitation; and that the friend did the shooting. In his behalf it was also shown that the FBI was unable to lift appellant’s fingerprints from the gun used by the assailant of Cisco. We are unable to say that appellant’s evidence was sufficient to pierce the veil of substantial evidence established by the State.

Affirmed.


author: John A. Fogleman, Justice.

text:
    INDUSTRIAL PARK BUSINESSMEN’S CLUB, Inc. et al v. William I. BUCK
    5-5863
    479 S.W. 2d 842
    Opinion delivered May 8, 1972

      /. H. Cottrell, Philip Ragsdale and Fred North, for appellants.

      Patton, Brown ir Leslie, for appellee.
   John A. Fogleman, Justice.

Appellee William I. Buck recovered Judgment against appellants for compensatory and punitive damages because of severe, permanent and disabling injuries attributable to a gunshot wound inflicted upon him at the Industrial Park Businessmen’s Club in Little Rock during the early morning hours of November 18, 1969. Appellants urge only two points for reversal, i.e., failure to direct a verdict in- their favor and to declare a mistrial when a witness was asked if she knew that Kennth Shaw had served time in the penitentiary.

Appellants’ argument on the first point is that appellee’s testimony is so greatly contradicted by witnesses called by him and that there are so many contradictions in the testimony of all the witnesses called by him that the verdict was against the manifest weight of the evidence and the supporting evidence not substantial. Of course, we are not concerned with the preponderance of the evidence. Hubbard v. Graves, 240 Ark. 64, 398 S.W. 2d 69. Although the testimony probably contains more inconsistencies and conflicts than are usually found in the versions of an altercation related by participants and eyewitnesses, due to the fact that all here appear to have been under the influence of intoxicating liquors to varying degrees, the resolution of these conflicts and inconsistencies was a matter for the jury. Blissett v. Frisby, 249 Ark. 235, 458 S.W. 2d 735; Arkansas Power & Light Co. v. Kennedy, 189 Ark. 95, 70 S.W. 2d 506. We cannot say that any of the testimony offered on Buck’s behalf relates a version that was physically impossible or not reasonably probable or that reasonable minds could only reach a conclusion contrary to the verdict or that the versions given by these witnesses present theories so much in opposition that we can say that the jury was left only to speculation and conjecture to decide between two equally probable, but inconsistent, hypotheses as to the proximate cause of Buck’s injuries;

In reviewing the evidence, it will, as required, be stated in the light most favorable to appellee and all doubts resolved and inferences drawn in his favor. Pearrow v. Huntsman, 248 Ark. 1146, 455 S.W. 2d 128. The testimony will also be considered in the light of the instructions to the jury, about which no complaint is presently made.

The court instructed the jury that Buck would be entitled to recover damages for failure of Martin or Shaw or both to use ordinary care, or for acting negligently with a wilful or wanton disregard for the rights and safety of others or for an assault on Buck, if such conduct was a proximate cause of his injury. The court also advised the jury that Buck could recover from Barg and Industrial Park Businessmen’s Club if he or it were guilty of negligence which was the proximate cause of the injury. Another instruction stated that it was the duty of the operator of a business to use ordinary care to protect his business invitees from injury resulting from the conduct of its agents or employees or other customers or third persons upon the premises under the circumstances, when such conduct could reasonably have been foreseen and could have been prevented by the use of ordinary care. The jury was also told that even though it found that Buck provoked the assault, the persons provoked had no right to exercise any greater degree of force than appeared reasonably necessary to them to repel an assault by him.

The place where Buck was wounded was being operated at the time under the name “Industrial Businessmen’s Club”, a nonprofit corporation, but it had been earlier known as the Black Hawk and the Four Seasons. The principal forms of recreation offered by it seems to have been pool and drinking intoxicating liquors. There is evidence that gambling on pool was regularly engaged in, with intermittent approval of the management.

Some facts are undisputed or virtually so. It is clear that Buck made himself obnoxious to everyone present, virtually from the time of his arrival shortly after midnight until he was shot at about 6:30 a.m. on November 18, 1969. He was snatching drinks from those who had been served at the club’s bar and periodically falling over the table where Barg, Shaw, Jerry Carpenter, Mike Bale and perhaps others were playing poker. He was also snatching money, either from the pot or some of the players. In spite of his conduct and condition, it seems that he was served beer or whiskey almost whenever he wanted either, doubtless to the knowledge of everyone present.

Martin and Shaw deliberately armed themselves when they prepared to go to the club. Martin carried a newly acquired .32-caliber revolver, described by witnesses as silver or chrome. Shaw carried a .32-caliber Browning automatic, which was dark in color. It was supplied by a magazine or clip. On two different occasions these weapons were turned in to the bartender, but were in Martin’s possession at the inception of the disturbance that led to the shooting of Buck.

At least until Barg arrived, the bartender Paul Christ was in charge of the club. After Barg’s arrival, Christ turned the bar over to a waitress and did enough drinking himself to have been described by witnesses as drunk. Later he became so upset with the course of events, that he unceremoniously left the premises with the intention of leaving the city for a vacation. Christ said 7 or 8 people were still at the club when he left.

Barg had been convicted of a felony in Chicago and later of another in Arkansas. He could not recall what he had done in Chicago before he came to Arkansas. The premises were leased to Barg, who was at the time paying the owner $500 per month rent. He in turn leased the premises to the club along with the club’s equipment for a rental of $1,500 to $1,800. Barg was unable to recall the amount of the rent, saying that he paid no attention and left the matter to his bookkeeper, who at the time was his wife. Barg’s daughter and secretary were two of the three directors of the club. Mary Melody, the club’s onetime bookkeeper who testified that she made income tax returns for the Bargs and did some bookkeeping for Mrs. Barg’s supper club and for the Black Hawk Club, was the other director and the person in whose name the liquor permit was issued. Barg had a key to the club and came there frequently. He had also subleased the premises to the predecessors of this club.

On the morning Buck was shot, the waitresses were told by Christ to ask Barg if they could leave at the usual closing time, 2:00 a.m. When refused permission, they stayed for about two hours longer and then left without permission. Admission standards, ostensibly requiring membership in the club, were rather lax. Several of those present on this occasion were nonmembers. There is no evidence that anyone was turned away.

When Martin asked for the pistols the second time there was quite an argument between him and the bartender, and the bartender released them to Martin upon the specific direction of Barg. Martin left the premises immediately after an ambulance was called for Buck and took his pistol to the apartment of Barbara Winters, one of the waitresses at the club. He said that he took the pistol there because he was on Federal probation and did not want to be caught with a weapon. Barbara Winters’ roommate unloaded the pistol which contained five cartridges and one empty casing. After the shooting Buck had powder burns on his chest and still had them on his neck at the time of trial.

Buck’s version of the incident follows:
Buck left an establishment called the Red Carpet, where he had consumed some quantity of beer, at about 12:15 a.m. and went to the place the incident occurred, which seems to have been better known to him as the Black Hawk. He had no membership at the club but was admitted upon his statement that he must have hung some steel for Jack Barg. Buck was not actually acquainted with Barg. He was not drunk on arrival at the club. He went to a back room where he watched and participated in pool games and drank more beer. Sometime after he arrived a poker game, in which Kenneth Shaw, Mike Bale, Jack Barg and Jerry Carpenter were participants commenced. Buck was not in the game, but at one time sat at the table to Carpenter’s left. He and Carpenter were friends, and Carpenter owed Buck for loans. When Carpenter began to win, Buck reached out to get some of the winnings that Carpenter had put into the pot, in an attempt to recoup a part of Carpenter’s debt to him. When this happened everyone in the game “got on” Buck, who then left and went to get another beer.
He did get away with a $42 check of Kenneth Shaw’s which Carpenter had won. He went back into the area where the poker game was going on about 4:00 or 5:00 a.m. As a result of something that took place at that time, Martin showed Buck the pistol Martin had and told Buck to straighten up. Buck then sat down first at the pool table, and then went to sit by Jerry Carpenter. Thereafter, a squabble started, and Buck undertook to get away from the table where the poker game was underway. Shaw moved around behind him; Barg got up from the poker table and moved toward him; and they all jumped Buck, got him down on the floor, struck him several times with one blow causing a cut over his eye. Buck did not recall having a gun and didn’t believe that he was too drunk to know whether he had one. While Buck was being held on the floor, Martin was holding a gun on his neck and shoved it down and pulled the trigger. The resulting shot nearly burst Buck’s eardrums, but he was not rendered unconscious. He asked Jerry Carpenter to come over and see what was wrong with him. Carpenter told him that his legs were paralyzed. Barg was standing over Buck saying, “Drag him outside, don’t let him die in here.” Buck did not see Shaw strike him, but he was struck from behind, and he knew that these blows had to come from Shaw because no one else was behind him at the time. Buck did not recall Bale being involved, but thought that Bale was one of those who was on top of him on the floor. He did not think that Barg ever, struck him.
When he first arrived at the club, Buck was drinking beer. Later he was drinking whiskey. He admitted that he was drinking pretty heavily but said that he was not drunk. He estimated that he had from three to six beers and three or four drinks of whiskey. The bartender left after Buck arrived, and Barg was running the club thereafter. Barg got Buck a beer and served him a drink, but Buck did not pay for either. Barg was ordering the waitresses and other people around. Buck said he could recall what had happened, but had difficulty relating the events to specific times.

Martin’s statement to police officer Bill Bates was introduced through the officer. Martin told Bates that both he and Shaw had pistols which Martin surrendered to Paul Christ, the bartender, about 45 minutes after their arrival at the club. According to him, the poker game started about 1:30. He said that Buck was drunk and frequently grabbed money from the poker table. Martin related that he went to the bartender and demanded the weapons and that Barg instructed the bartender to release them to Martin. Martin stated to Bates that he took his own and Shaw’s pistols and returned to the poker game where he sat on the back of a chair with Shaw’s automatic pistol in his back pocket and his own in his belt. After he had been sitting there for some time, Buck grabbed some of Bale’s money from the table, got behind Martin, grabbed Shaw’s pistol and threatened to kill Martin, Shaw and Bale. Martin said that Shaw slipped behind Buck and grabbed him and that Bale grabbed him from the front and that he, Martin, went in on top of all of them, and then a gun fired and Buck went limp. All of the poker players returned to the game, according to Martin, but he then saw blood and called upon someone to call an ambulance. He stated that he remembered pulling his gun and pointing it at Buck, but did not remember firing it.

When called to testify by appellee, Martin verified the truth of his statement to the officer, except for immaterial qualifications. Martin stated that after the bartender and waitresses left, Barg directed Martin to mix drinks and that he went behind the bar and did so. Martin also stated that Barg was the only person giving orders concerning the service of drinks and the poker game, after the bartender and waitresses left. According to Martin no food was served at the club, and the reason he went there was because drinks were served to club members. He testified that every one who went to the club drank.

Detective Kitchens of the Little Rock Police Department related the content of a statement made to him by Kenneth Shaw. It was substantially as follows:

Shaw stated that he was carrying the .32 automatic pistol when he arrived at the club. After having some drinks, he began to play poker with Barg, Bale and another man whose name he did not know. He became angry when he thought that a pot to which he was entitled was taken from him and asked Martin to get his gun. Martin left, then returned and indicated that he had the pistol. Thereafter the poker game continued for more than two hours without any difficulty among the players. During this time Buck began to fall over the table and spill drinks. On one occasion Shaw slapped him. Later Buck showed up across the room with Shaw’s pistol pointed at Martin, threatening Martin and one or two others. Shaw ran toward Buck, who first pointed the gun at Shaw’s chest and then turned his attention to others, enabling Shaw to slip behind Buck, struggle with him and take the weapon away, after which someone took it from Shaw. Shaw then turned Buck loose and went back to the poker table, when he saw Buck lying on the floor with a wound in his neck. Shaw did not hear the shot but was drinking pretty heavily and did not recall the exact events as they occurred. He did not know who shot Buck.

When called as a witness, Shaw stated that his testimony on the statement would be the same as to “that portion of it.”

Mike Bale’s testimony related principally to the altercation in which Buck was shot and the incidents immediately preceding it. He said, in substance:

Buck grabbed some of my money. When I reached to get it, Buck had a gun pointed at me. Shaw and I rose from the table. Shaw and Martin got behind Buck, and he turned upon them and pointed the gun at Shaw. I advanced toward Buck and when he turned back toward me, they got him. All of us got on him at about the same time and had him down and fought awhile. The gun that Buck had was up in the air, and I grabbed it. I then heard the shot, and Buck went down and came back up. The first time he went down I saw a small trace of blood. The second time there was a bigger puddle. I started to call an ambulance but was told not to do so by Barg. I then left. I do not remember Buck being on the floor when the shot was fired or whether the shot was before or after I got the gun, but it was about the same time. It was the chrome-plated gun* that went off. The gun in Buck’s hand was a little black automatic without a clip in it. I took it with me when I left and later took it to the police. I did not see Shaw do anything except try to get the gun. I never saw Buck point the gun at Martin.

Christ testified that he removed the clip from the automatic pistol and threw it behind the bar, before he released the pistols to Martin the ¡second time. There was evidence from which the jury might have believed that at least Martin, Barg and Bale were aware of this. There was also testimony that this pistol was “snapping” whenever Buck pulled the trigger during the episode. This clip was delivered to officer Bates by Christ, before the pistol was turned over to the officers with the clip missing. One of the officers testified that the revolver would hold 7 shells. Barbara Winters testified that, as Martin was leaving her apartment to return to the club after the shooting, Bale remarked, “Hershel or I shot a guy”. Shaw denied that he had struck Buck, saying that Buck was really too drunk to defend himself with his hands. He did admit slapping Buck.

The evidence was sufficient to support a jury verdict that Martin and Shaw acted negligently or in wilful or wanton disregard for the safety of others in attempting to disarm Buck or, that in repelling an assault by him, they used excessive force.

The evidence must be tested by a different scale insofar as Barg and the Industrial Bussinessmen’s Club are concerned. In this regard we find adequate evidence to support a jury finding that the club was a place of public entertainment and the alter ego of Barg. In addition to that set out above there was evidence tending to show that:

While Barg’s frequent visits to the club were ostensibly for the checking on the equipment, he would drink to the point of inebriation, without paying for his drinks. He often gambled at the club, usually at the pool tables. He frequently sat in the back room at the club. Barg claimed to have first entered the club at 2 a.m. when Martin and the bartender were arguing over the pistols. The excuse for entering was that he saw the lights on and knew that the club should have been closed at that hour. He vaguely remembered trying to get the people there to leave because he had information leading him to believe that Buck, Shaw, Bale and Martin were not persons of good character. After Barg’s arrival, no one else gave any order to employees, and he ordered both employees and guests to prepare and serve drinks to other guests for which neither he nor anyone else paid. He was considered by at least one of the employees as one of “the bosses”. He had remonstrated with the bartender about the waitresses drinking too much of an expensive brand of whiskey without paying for it. Thereafter, the bartender told these employees to bring their own bottles. The permit for serving drinks was issued to Mary Melody after the first permittee left town. She was selected with her full knowledge that a permit could not be issued to one who had been convicted of a felony.

We have said that no distinction exists between hotels and places of public amusement in the matter of precautions to be taken for persons invited to enjoy the facilities furnished. Ford v. Adams, 212 Ark. 458, 206 S.W. 2d 970, 207 S.W. 2d 311. We there recognized that neither are insurers of the safety of their guests, but that both are charged with the duty of taking all precautions for the protection of their guests which reasonable prudence and ordinary care would suggest. We recall that we said in Anderson & Co. v. Diaz, 77 Ark. 606, 92 S.W. 861, 113 Am St Rep 180, 4 LRA (ns) 649, that there is a wide difference between the duty owed patrons by a saloonkeeper and that owed by a common carrier or an innkeeper. In that case, liability was asserted on the basis of the act of a bartender in participating in applying an exaggerated “hotfoot” to an intoxicated patron. We held that the bartender was clearly outside the scope of his employment, so that the master was not responsible for his acts. There is nothing to indicate that the master had any knowledge or was charged with any notice of any hazard to his patrons from this source or by the means utilized. In this state we recognize that a common carrier is charged with the highest degree of care for the safety of its passengers which a reasonably prudent and cautious man would exercise consistent with the mode of conveyance and practical operation of its trains. St. Louis Southwestern Ry. Co. v. Holwerk, 204 Ark. 587, 163 S.W. 2d 175. But its duty to a “passenger” in a depot, station or similar premises of the carrier is only to exercise ordinary care, the same as is owed to invitees of other businesses. Crown Coach Co. v. Whitaker, 208 Ark. 535, 186 S.W. 2d 940. See Comment AMI 1701. In Diaz, we pointed out that it may well be the duty of an innkeeper to protect his guests from insult and injury. But whatever differences might exist between the duties of innkeepers and saloonkeepers, we have not said that a saloonkeeper would not owe the duty to exercise ordinary care for the safety of his patrons.

Of course, the club would not necessarily be classified as a saloon only. While it was a place where intoxicating liquors were sold, it might also have been classified as a pool parlor. It might also be classified, under the evidence, as a place of public amusement. But, however this club may be classified, Buck must be considered as a business invitee. As such, the proprietor owed him the duty to exercise ordinary care for his safety. Linxwiler v. El Dorado Sports Center, Inc., 233 Ark. 191, 343 S.W. 2d 411. The weight of authority supports the view that while a tavern keeper or bar operator is not an insurer of the safety of his patrons, he is under the duty to use reasonable care and viligance to protect guests or patrons from reasonably forseeable injury, mistreatment or annoyance at the hands of other patrons. Glen Park Democratic Club, Inc. v. Kylsa, 139 Ind. App. 393, 213 N.E. 2d 812 (1966); Priewe v. Bartz, 249 Minn. 488, 83 N.W. 2d 116, 70 A.L.R. 2d 621 (1957); Reilly v. 180 Club, Inc., 14 N.J. Super. 420, 82 A. 2d 210 (1951); Kane v. Fields Corner Grille, Inc., 341 Mass. 640, 171 N.E. 2d 287 (1960); Kimple v. Foster, 205 Kan. 415, 469 P. 2d 281 (1970); Waldron v. Hammond, 71 Wash. 2d 361, 428 P. 2d 589 (1969). Negligence in such a situation may consist of failure to take appropriate action to eject persons of undesirable character from the premises or knowingly permitting irresponsible, vicious or drunken persons to be in and about the premises (Glen Park Democratic Club, Inc. v. Kylsa, supra; Priewe v. Bartz, supra) or failure to maintain order and sobriety in the establishment. {Priewe v. Bartz, supra). Of course the proprietor is not required to protect the patrons of a bar or tavern from unlikely dangers, or improbable harm, but he is required to take affirmative action to maintain order when harm to patrons is reasonably foreseeable, and certainly whenever the circumstances are such as to indicate that the danger of harm to patrons by other patrons should have been anticipated by one reasonably alert. Priewe v. Bartz, supra; Reilly v. 180 Club, Inc., supra; Kane v. Fields Corner Grille, Inc., supra; Kimple v. Foster, supra; Waldron v. Hammond, supra. In this respect, the court’s instruction as to the liability of Barg and the club was correct.

There is considerable testimony that Barg himself was drunk while at the club, and it is supported not only by the vagueness of Barg’s testimony, but by his admission that the entire episode was all vague to him. He admitted awareness of the character of some of those present and that there was too much confusion about the place. His alleged efforts to persuade others to leave were not apparent. He was ordering the serving of drinks to people who he should have known were intoxicated. As a witness to quite a bit of disturbance, not only did he know that some of the people he considered undesirable were armed, but he also was instrumental in their being armed at the time of the encounter from which the shooting resulted. The course of events called for some action on the part of the management but there is no evidence that any was taken, except that Christ said he unsuccessfully tried to get everyone to leave.

We find the evidence to support the verdict against Barg and the club on the issue submitted to the jury to be substantial.

We find no merit in the second point raised by appellants. Appellee’s witness Betty Walloch, manager of the club, was asked if she had been informed that Shaw had been in the penitentiary. A prompt objection was promptly sustained. Motion for mistrial was made by appellants after the witness was excused. The motion was denied, but the Circuit Judge gave a clear admonition to the jury to disregard the unanswered question, saying that it was improper, should not have been asked and should not be considered by the jury at all. We find no abuse of discretion in the denial of this motion and no manifest prejudice to appellants which made the court’s action ineffective or insufficient. Under these circumstances we will not reverse the judgment. Briley v. White, 209 Ark. 941, 193 S.W. 2d 326; Terry Dairy Co. v. Parker, 144 Ark. 401, 223 S.W. 6.

The judgment is affirmed.

Byrd, J., not participating.

      Buck pointed out one of the defendants as a man who was on top of him when the shot was fired, but the record does not further identify this person.


text:
    Rupert MOORE v. STATE of Arkansas
    5700
    479 S.W. 2d 857
    Opinion delivered May 8, 1972

      Odell C. Carter, for appellant.

      Patten, Brown & Leslie, for appellee.
   John A. Fogleman, Justice.

Rupert Moore was acquitted of the burglary of the store of H & R Wood & Sons, Inc., at Grady on November IS, 1970, but convicted of grand larceny of property taken from the store. He presents two points for reversal of his conviction. The first is that an instruction given bv the trial court was tantamount to a directed verdict. The instruction defined larceny and told the jury that, if it found from the testimony beyond a reasonable doubt, that appellant had, within three years prior to the filing of the indictment, stolen property of H&R Wood & Sons, Inc., of the value of more than $35 with the intent to convert the same to his own use and deprive the true owner thereof, it would convict him of grand larceny. This instruction is quite similar in form to an instruction approved in Condit v. State, 130 Ark. 341, 197 S.W. 579. See also, Roberts v. State, 84 Ark. 564, 106 S.W. 952. Appellant complains that the court used the words “will convict,” upon the proper finding, rather than “should convict” as was the case in Condit. We see little significant difference in the word choice here and no difference from telling a jury that if it believes the requisite facts to be true, the law demands a verdict of guilty as was indicated would be proper in Roberts.

The most that can be said of the instruction is that it is a binding instruction in that the verdict depends entirely upon the proposition therein stated and tells the jury to return a verdict against the defendant, if it finds the stated conditions to be true beyond a reasonable doubt. Hearn v. East Texas Motor Freight Lines, 219 Ark. 297, 241 S.W. 2d 259; Reynolds v. Ashabranner, 212 Ark. 718, 207 S.W. 2d 304; Scott-Burr Stores Corp. v. Foster, 197 Ark. 232, 122 S.W. 2d 165. It is not error to instruct a jury that if it finds or believes, from the evidence, beyond a reasonable doubt, certain things specified, the defendant is guilty of the crime charged. Thomas v. State, 74 Ark. 431, 86 S.W. 404. Such an instruction containing a complete and correct statement of the law which does not exclude or ignore any question in issue is not erroneous. Scott-Burr Stores Corp. v. Foster, supra; St. Louis, I. M. & S. Ry. Co. v. Smith, 82 Ark. 105, 100 S.W. 884. It is only when a binding instruction is an erroneous declaration of law or ignores an essential issue in the case that its being given constitutes prejudicial error which cannot be cured by other correct instructions which would supply the deficiency. Johnson v. State, 142 Ark. 573, 219 S.W. 32; Claiborne v. State, 51 Ark. 88, 9 S.W. 851; Whaley v. Crutchfield, 226 Ark. 921, 294 S.W. 2d 775; Hearn v. East Texas Motor Freight Lines, supra; Missouri Pacific R. Co. v. Burks, 196 Ark. 1104, 121 S.W. 2d 65. See also, Bridgeman v. State, 145 Ark. 554, 225 S.W. 1. But see, Slaytor v. State, 141 Ark. 11, 215 S.W. 886. Examination of the instruction complained of here discloses that every issue in the case was covered.

Even though we find no reversible error in this instruction, this court has never looked favorably upon binding instructions. We have long discouraged the use of such instructions, because of the impractibility of stating all the various propositions of law involved in one instruction. See Ft. Smith Light and Traction Co. v. Hendrickson, 126 Ark. 377, 189 S.W. 1064. The hazards to an error-free trial posed by this type of instruction in a multi-faceted trial are obvious. Reversals on account of a single instruction should be exceptional. It is significant that AMI, Civil, prescribed by per curiam order on April 19, 1965, effective February 1, 1966, does not contain a single binding instruction. The note on use appended to AMI 2101 clearly indicates the extent to which the Committee on Instructions went in an endeavor to avoid the ever-present pitfalls associated with instructions of this type. Judges should, wherever possible, avoid the giving of binding instructions.

The remaining point for reversal is that error was committed in permitting witnesses to testify about objects never introduced into evidence because they were never properly identified as having any connection with the crimes charged. The information alleged that Rupert Moore and a companion (who was tried separately) stole a .44-magnum carbine, a Remington .22-caliber automatic rifle, a Stevens 12 gauge shotgun and a Winchester single shot .22-caliber rifle. The Remington .22 rifle was introduced in evidence without objection. It had been identified as coming from the burglarized store and connected with Moore by testimony that he had pawned it at Doc’s Pawn Shop in Pine Bluff. It was shown that a rifle was delivered to a deputy sheriff at Moore’s home by Moore himself, but no one was able to say that it had come from the store. A carbine was reported as having been taken from the store but a weapon of that type could not be identified. A single shot .22 rifle said to have been pawned by Moore was recovered from Hayes Pawn Shop, but the state could not show that it came from the Wood store. None of the weapons, other than the .22-caliber automatic rifle was ever admitted into evidence, and every objection to admission was sustained. Obviously, the weapons were in the courtroom in plain view of the jury. Appellant complains that the trial court never admonished the jury not to consider the preliminary testimony about the rifles never admitted into evidence. The fact is, however, that the appellant was satisfied to rest upon the sustaining of his objections. He did not, either at the time the separate objections were sustained, or at the conclusion of all the evidence, request that the jury be admonished not to consider the testimony about the weapons not identified or connected with him. He is in no position to complain on this ground. Whitney v. State, 176 Ark. 771, 4 S.W. 2d 9; Hardy v. Raines, 228 Ark. 648, 310 S.W. 2d 494.

Appellant also suggests that he was so prejudiced by this testimony that a reversal is required on the same basis as was applied in Cabbiness v. State, 241 Ark. 898, 410 S.W. 2d 867. We do not agree. There, the prosecuting attorney, even after the court had belatedly sustained the defendant’s objection to the introduction of a pistol, the inadmissibility of which was not subject to doubt, asked a witness whether the pistol was loaded or unloaded. No such situation is presented here, and we cannot say that the testimony was so manifestly prejudicial that a proper admonition by the trial court would not have afforded an adequate cure.

The judgment is affirmed.