text:
    The First National Bank in Little Rook v. Russell C. Roberts, Judge
    5-4286
    416 S. W. 2d 316
    Opinion delivered June 5, 1967
    [Rehearing denied July 26, 1967.]

      Smith, Williams, Friday & Bowen, for appellant.

      Gene Worsham and Fletcher Jackson and Jeff Mob-ley and Joe Purcell, Attorney General; Don Langston & William R. Hass, Assts. Attys. General, for appellee.
   CoNley Byrd, Justice.

Petitioner, The First National Bank, filed herein a Petition for Writ of Prohibition to test the validity of a subpoena issued by the Faulkner County prosecuting attorney summoning the bank to appear before him and bring with it records pertaining to the bank account of Wanda L. Tudor; and to challenge the validity of the order of respondent, Russell C. Roberts, judge of the Faulkner County Circuit Court, directing petitioner to furnish to the prosecuting attorney, pursuant to the subpoena, copies of (1) the account card referred to as a signature card, (2) all deposit slips, and (3) all ledger sheets in connection with the bank account of Wanda L. Tudor.

In view of the importance of the issues, we are treating the petition as one for certiorari, as suggested by petitioner. This same procedure was followed in Wasson, Bank Comm’r v. Dodge, Chancellor, 192 Ark. 728, 94 S.W. 2d 720 (1936).

The record shows that, as directed by Senate Resolution No. 29 of the 1967 legislature, the prosecuting attorney began an investigation into alleged vote buying in Faulkner County during the 1966 general election. During his investigation, he acquired photostats of some checks drawn on the bank account of Wanda L. Tudor in the First National Bank in Little Rock which con-tamed the notation, “door knocker.’’ This litigation arose when the prosecuting attorney petitioned the circuit court to direct the bank to produce the information and documents sought by the subpoena the prosecuting attorney had issued under the authority of Ark. Stat. Ann. § 43-801 (Repl. 1964).

For relief from the order directing petitioner to produce the (1) account card, (2) deposit slips and (3) ledger sheets, petitioner relies upon four points which we will discuss in the order set out by petitioner.

POINT I

THE CIRCUIT COURT IS WITHOUT JURISDICTION TO AUTHORIZE AND EMPOWER THE PROSECUTING ATTORNEY TO SIT AS A GRAND JURY, IN THE ABSENCE OF THE PROSECUTING ATTORNEY’S COMPLIANCE WITH THE PROVISIONS OF ARK. STAT. ANN. § 43-801 (REPL. 1964)

Ark. Stat. Ann. § 43-801 provides as follows:

“The prosecuting attorneys and their deputies shall have authority to issue subpoenas in all criminal matters they are investigating; and shall have authority to administer oaths for the purpose of taking the testimony of witnesses subpoenaed before them; such oath when administered by the prosecuting attorney or his deputy shall have the same effect as if administered by the foreman of the grand jury. The subpoena herein provided for would be issued by the prosecuting attorney or his deputy and shall be substantially in the following form:
“The State of Arkansas to the Sheriff of. County: You are commanded to summon. to attend before the Prosecuting Attorney at. on the., A.D. 19., at.....M., and testify in the matter of an investigation then to be conducted by the said Prosecuting Attorney growing out of a representation that.has committed the crime of...in said County. Witness my hand this . day of ...A. I). 19.
Prosecuting Attorney
By.:.
Deputy Prosecuting Attorney”

The subpoena issued by the prosecuting attorney is as follows:

“PROSECUTING ATTORNEY’S
WITNESS SUBPOENA
“THE STATE OF ARKANSAS TO THE SHERIFF OF PULASKI COUNTY:
“You are commanded to summons the First National Bank in Little Rock, Arkansas, or its duly authorized representative to attend before the Prosecuting Attorney in the Faulkner County Courthouse, Conway, Arkansas, on or before the 16th day of March, 1967, and/or to furnish to him the following information and documents: The name and address of all individuals authorized to sign checks on the bank account on which Wanda L. Tudor and others jointly with her had or have in your bank; the date said account was opened; the dates and amounts of all deposits made in said account; the source of said deposits whether by cash or by check, and if by check, upon' whose account and on what bank drawn, the total number of checks written on said account for a period' of 120 days next preceding November 17, 1966, by each person authorized to sign checks on said account; photostat copies of all checks, front and back, reflecting that they were cashed, deposited or presented for payment at or through any and all banks in Faulkner County, Arkansas, and then and there present said documents, information and testimony in the manner of said investigation then and there to be conducted by the said Prosecuting Attorney growing out of a representation of alleged election law violations having been committed in Faulkner County, Arkansas.
“WITNESS my hand this 22nd day of February, 1967.
/s/ Jeff Mobley
PROSECUTING- ATTORNEY”

Petitioner’s argument under this point is that the “Prosecuting Attorney’s Witness Subpoena” does not specify the crime committed nor the name of the person charged with the crime and that it, therefore, is not in substantial compliance with Ark. Stat. Ann. § 43-801; that the General Assembly must have had a specific purpose for setting forth in the statute the form of subpoena used by a prosecuting attorney; and that this purpose must have been to avoid harassment of innocent parties and the invasion of personal rights.

This is an investigation of an alleged election fraud. While we have a number of election laws making it a crime to bribe voters or otherwise expend money in a campaign, the prosecuting attorney does not know whether a specific election law has been violated or who violated which law. Thus, it is easily seen that,- after investigation, the prosecuting attorney may determine that no election laws have been violated. In such instance, he would have committed a grave injustice had he alleged in his subpoena that any certain individual had committed a specific crime.

Furthermore, while we recognize that all delegation of authority to a public official to act on any matter is subject to being perverted to an unlawful use by the unscrupulous, we believe that petitioner’s fears of harassment of innocent parties and the invasion of personal rights are overemphasized. It must be remembered that the prosecuting attorney is powerless to force testimony from a witness without applying to the judiciary, where certainly the witness would have an opportunity to prevent harassment and invasion of his personal rights.

Therefore, with respect to the issues raised by petitioner, we hold his contention on this point to be without merit.

POINT II

THE PROSECUTING! ATTORNEY’S SUBPOENA COMMANDS PETITIONER TO PRODUCE RECORDS NOT IN ITS POSSESSION.

While this would be a good defense in a contempt action against petitioner, it is not here in a position to claim that it does not have the records which it was directed to produce. Petitioner’s president specifically stated that on advice of counsel he had not examined the bank account in question to determine what records the bank had.

We do not understand the court order to direct petitioner to furnish records that it did not have on the date the subpoena was issued.

POINT III

THE PROSECUTING ATTORNEY’S SUBPOENA IS UNREASONABLE AND UNCONSCIONABLE IN THAT IT WOULD REQUIRE THE PETITIONER TO SPEND LARGE SUMS OF. MONEY EXAMINING VOLUMINOUS RECORDS AND REPRODUCING RECORDS AND WOULD DISRUPT THE PETITIONER’S DAY-TO-DAY OPERATIONS AND DUTY ASSIGNMENTS OF PETITIONER’S EMPLOYEES, THE CUMULATIVE EFFECT OF WHICH WOULD. CONSTITUTE A VIOLATION OF THE PETITIONER’S RIGHTS UNDER AMENDMENTS 4 AND 14 TO THE CONSTITUTION OF THE UNITED STATES. AND ARTICLE 2, SECTIONS 3 AND 15 TO THE CONSTITUTION OF THE STATE OF ARKANSAS.

We find this contention to be without merit- because on cross-examination it was established that petitioner regularly furnishes these same records to the FBI and the IRS agents when they have the written request or authorization of the owner of the bank account. Furthermore, the prosecuting attorney recognized that there would be ¡a cost involved in the production of some of the documents and offered to get a commitment from the county for the payment of such expenses prior to- the production of said documents. The bank, for purposes of determining the right of the prosecuting attorney to reach such records, requested him not to take any action on cost commitments until the issues in this, litigation were determined.

Wanda L. Tudor’s testimony established that the bank account was in her name and that only she was authorized to draw checks on the account. In this situation, petitioner stated that as far as it was concerned, Mrs. Tudor was the owner of the bank account.

After establishing that the bank does furnish such records to the FBI and the IRS under the circumstances mentioned, the prosecuting attorney asked petitioner’s president the following question and obtained the answer set out below: •

“Q. Mr. Yinson, I will ask' you whether or not you would turn over to the Prosecuting Attorney’s office of this district, the Fifth Judicial District, the records that have been requested concerning the account in your bank in the name of Wanda L. Tudor, which has been testified to and under discussion in this litigation? Would you turn these records over to the Prosecuting Attorney’s office if Miss Wanda L. Tudor furnished you her written permission to do so?
“A. I believe I have previously testified, Mr. Mobley, that we do allow examination of bank records upon written request or authorization of the owner of the account, provided our bank gets a proper request, and by that I mean a request signed by Mrs. Tudor, the owner of the account, that the Prosecuting Attorney be allowed to examine, or reproduce, the records in our bank, we would comply with Mrs. Tudor’s request, and we would make available to you all the records pertaining to this account. I would, not want to tell you we would reproduce them all. That would be a matter of cost. We would make all records available to the Prosecuting Attorney Attorney upon her written order. Yes sir.”

Having established through Mr. Yinson that a statement in open court by Mrs. Tudor authorizing the bank to release the records would satisfy its policy of requiring a written request or authorization of the owner of the account, and having established that Mrs. Tudor did give her consent in open court for the delivery of these records, the court entered the oral order here involved, which is as follows:

“Mr. Bank President, you produce on or before 5:00 o’clock p.m., Tuesday afternoon, March 28, 1967, the following:
“(1) Bank ledger sheet covering the account of Wanda Tudor from its inception to the present date —I mean from the day the account was opened to the present time. You will produce a copy of the authorization as to who has authority to sign checks against that account. If there is more than one person who has authority to write checks on that particular account, you will so produce a copy of it. I am saying copy from the standpoint I know that you don’t want to get rid of your originals. Mr. Mobley, I take it that a copy — a photostat will suffice?”
# # #
“In addition, it is the requirement of this Court that you produce copies of deposit slips made by Wanda L. Tudor, or deposit slips made by anyone else. These deposit slips, of course, would show whether the deposit was made by check, money, or so forth.
“Now, this does not mean that you will not be ordered in the future to comply with further orders of this Court, and at this time I withhold my orders as to you as to any future things which may be required. ’ ’

Following this order, counsel for petitioner asked Mrs. Tudor if she had any objection to the bank furnishing the items in the order, whereupon counsel for Mrs. Tudor stated, “We have no objection.”

Under the circumstances, we think there was no abuse of discretion by the trial court in ordering the production of the documents. However, we would point out that petitioner would be entitled to the cost of the production of the records before it could be held in contempt of court for failure to do so.

POINT IV

THE PROSECUTING- ATTORNEY HAS NOT SHOWN THAT THE INFORMATION SOUGHT IN THE SUBPOENA FROM THE PETITIONER IS NOT OTHERWISE AVAILABLE TO THE PROSECUTING ATTORNEY.

The record does not sustain this contention. What the record shows is that Mrs. Tudor had these documents in her possession at the Republican Party headquarters in the Tower Building before she went to work in Governor Rockefeller’s office at the capitol following his inauguration; that when she went back to get the records she was unable to find them or to determine who had the records. Her testimony is that she was informed by the folks working at the party headquarters that since she did not have the records she consequently could not be held in contempt for failure to produce them.

Therefore, it appears to us that the record does not show that the information sought is otherwise available to the prosecuting attorney.

For the reasons stated herein, the petition is denied.

       Petitioner does not challenge the proceedings used by the prosecuting attorney to enforce compliance with his subpoena.

       In taking this position, Mr. Vinson, petitioner’s president, stated: “I wanted it to be clear our bank has no intention of obstructing' anything, the prosecuting attorney or this Court in what they are attempting to do. Our bank is only interested in trying to protect the sanctity of what we consider to be a trust, and I believe the majority of people — most of us have bank accounts, and we would always appreciate a bank taking that position, and I want to state again .we have no interest in any of this affair at all. If there are two sides, we don’t have any interest in either side, only the bank records, and, again, it is a historic thing, not something that happened yesterday.”


source: Caselaw Access Project

author: PER CURIAM. Paul Ward, Justice,

license: Public Domain

text:
    State v. Susan Epperson and N. H. Blanchard
    5-4127
    416 S. W. 2nd 322
    Opinion delivered June 5, 1967
    [Rehearing denied July 26, 1967.]

      Bruce Bennett, Attorney General; Fletcher Jackson, Asst. Atty. General, for appellant.

      Warren & Bullion, for appellee.
   PER CURIAM.

Upon the principal issue, that of constitutionality, the court holds that Initiated Measure No. 1 of 1928, Ark. Stat. Ann. § 80-1627 and § 80-1628 (Repl. 1960), is a valid exercise of the state’s power to specify the curriculum in its public schools. The court expresses no opinion on the question whether the Act prohibits any explanation of the theory of evolution or merely prohibits teaching that the theory is true; the answer not being necessary to a decision in the case, and the issue not having been raised.

The decree is reversed and the cause dismissed.

Ward, J., concurs. BrowN, J., dissents.

Paul Ward, Justice,

concurring. I agree with the first sentence in the majority opinion.

To my mind, the rest of the opinion beclouds the clear announcement made in the first sentence.


author: PER CURIAM. JohN A. FoglemaN, Justice, J. Fred Jones, Justice-,

text:
    Dan Cummings and Bessie Cummings v. Jim O. Boyles, Paul Rogers and Mettie Rogers
    5-4113
    415 S. W. 2nd 571
    Opinion delivered February 27, 1967
    [Rehearing denied, June 5, 1967]
   PER CURIAM.

The appellees, within the time allowed for the filing of a petition for rehearing, filed a motion for clarification of the opinion, which is in substance a petition for rehearing.' It is contended that the court was in error in modifying- the chancellor’s decree and that the decree should have been affirmed.

This contention is well taken. The modification was based upon a finding that part of Beaver Dam Island had formed within the appellants’ original boundaries and, therefore, belonged to them by operation of Ark. Stat. Ann. § 10-202 (Repl. 1956). That theory of the case was not argued by the appellants as a basis for reversing the chancellor’s decree. The statute was mentioned only in connection with the appellants’ request that if the decree should 'be affirmed the cause should, nevertheless, be remanded for a determination of what changes, if any, in the channel of the river might have been made by the Corps of Engineers after the trial of this case. It is a familiar rule of practice that an appellant waives any contention not argued in his brief. Johnson v. Gammill, 231 Ark. 1, 328 S. W. 2d 127 (1959); Bowling v. Stough, 101 Ark. 398, 142 S.W. 512 (1911). Although chancery cases are tried de novo, we do not reverse the decree upon a ground not argued by the appellant.

The decree is affirmed, without prejudice to the assertion by either party of any new cause of action that may have arisen since the trial as a result of the activities of the Corps of Engineers.

JohN A. FoglemaN, Justice,

dissenting. I respectfully dissent from the per curiam opinion of the court which eliminates the modification of the trial court’s decree provided for in our original opinion. 1 agree that the motion for a clarification should be considered as a petition for rehearing. It is also proper that the former opinion should be corrected, as we never intended to award to appellants the title to land they never acquired either by deed or by accretion or island formation within their original boundary.

I would correct the original opinion to direct that the lower court’s decree be modified to award to appellants so much of Beaver Dam Island, as it now exists, which lies within the original boundaries of the following land description:

Section 32 and the SW *4 of the NW %; the NE ti of the SWy4; the NW % of the SW%and the NW *4 of the SE of Section 33, as well as that part of the SE % of the NW % of Section 33 bounded on the south by the NE % of the SW % of Section 33, and on the north by the “chute” of the Arkansas River, which flows or lies south of Beaver Dam Island, as such chute existed on March 10, 1923; all in Township 4 North, Range 14 West in Pulaski County, Arkansas.

Appellants acquired title to so much of the SEli of the NW% of Section 33 that lies south of Beaver Dam Island .and south of the chute (once the Arkansas River) on the south side of Beaver Dam Island as accretions to the NEli of the SW% of Section 33 under order of the Pulaski County Circuit Court dated March 10, 1923, appearing at page 81 of the abstract of title filed as exhibit 11 to the record in this case. I find no merit in the contention by appellees, made for the first time in this court, that appellants’ title to the SW14 NW14 of Section 33, except for railroad right-of-way, is not good because of a void description.

I also agree with the chancellor’s finding that no-avulsion did, in fact, occur in 1957, and agree that a “chute” or at least water of some description of varying depth, width and movement has existed on the south side of Beaver Dam Island since the late 1800’s. The findings of the chancellor that Beaver Dam Island was never an accretion to land owned by appellants, and that appellants failed to prove title to Beaver Dam Island by adverse possession are not against the preponderance of the evidence. The evidence seems to me to establish beyond question that a part of the island formed within appellants’ boundaries, possibly by accretion to the island. In his holding to the contrary, I feel that the trial judge was in error.

But the majority, in their action on rehearing, say that my proposed action cannot be taken because this theory of the case was not argued as a basis for revers ing the decree and that the appellants waive any contention not argued in their brief. Trials of appeals from equity courts are de novo and this court determines where the preponderance of the evidence lies. Bringing a chancery case to this court for review opens the whole case as if it had never been tried, as to all the points made in the court below. Woodruff v. Core, 23 Ark. 341. The appeal brings, up the whole case and the court passes upon the record as to the facts as well as the law. Mccrite v. Hendrix College, 198 Ark. 1149, 133 S. W. 2d 31. In this court, the law and the facts are examined the same as if there had been no decision at nisi prius and this court renders its decree based upon such record. Arkansas Bankers’ Ass’n. v. Ligon, 174 Ark. 234, 295 S. W. 4; Grayson v. Bowie, 197 Ark. 128, 122 S. W. 2d 536.

Of course, this does not mean that we will search the transcript and decide the case on the basis of that search. Trial de novo is upon the evidence as abstracted and not the original record. Smock v. Corpier, 226 Ark. 701, 292 S.W. 2d 260.

Although no assignment of errors is required by Act 555 of 1953, I agree that we should require compliance with Rule 9 (c) which requires that appellant list and number the points relied upon for reversal of a decree. I would not propose that the trial de novo be converted into a search for error. I agree that we can consider points not raised as waived, for this court cannot be expected to place itself in the position of the appellant and decide in just what respect a decree erroneously affects him adversely. While appellants did not list as a separate point the error of the lower court in finding that no part of the island formed within their original boundaries, they listed the following point:

“Alternatively, if appellants’ position is not sustained in this appeal, this cause should be remanded with directions to modify the decree herein to determine the interests of the appellants in accretions subsequent to the trial of the case for the reason that the construction of revetments by the TT.S. Corps of Engineers has altered the natural flow of the river, so that subsequent accretions are not the natural result of gradual deposits.”

The evidence showed certain of these revetments to be within appellants ’ original boundaries in a river chute between their lands on the mainland and that portion of Beaver Dam Island within their original boundaries. While I think appellants were in error as to the remedy in asking that the cause be remanded, they recognized that a determination of just what they were entitled to under existing conditions could be determinative of their rights in subsequent deposits in the chute. An examination of the exhibits will reveal that these deposits will likely be more valuable than the present rights of appellants in the island. I say that the question was presented in their argument under this point. I say this, even though I think they should have recognized that this is a trial de novo and asked for relief here by way of fixing the extent of their rights within their original boundaries. The portions of this argument that I deem to raise the question are:

‘ ‘ Should it be determined that the appellants do not own the land in question because it is not an accretion, there still remains the difficulty of determining the ownership of lands accreting to the lands of appellants because the construction of revetments by the TJ.S. Corps of Engineers has been such as to alter the natural flow of the river, and in effect to cause deposits which are not the result of the natural, gradual action of the stream. An examination of the aerial photographs introduced into evidence in this case show that several of these stone and wood revetments have been constructed which will in time eliminate the flow of water through the chute.
* * #
* * *If the lands in dispute are determined not to have arisen by accretion to the land of the appellant the natural effect of such a decision will be a finding that they are accretions to the island claimed by appellee Boyles.
Ark. Stats. Ann. § 10-204 provides: The title to all lands which have heretofore formed, or may hereafter form, in the beds of non-navigable lakes, or in abandoned river channels or beds, whether or not still navigable, which alluvian or reformed lands are above the ordinary high water mark, shall ve'st in the riparian owners to said lands and shall be assessed and taxed as other lands.”

If there were no reference to the statute under which appellants are entitled to the part of the island within their original boundary, in their abstract or brief, I would concur. Bowling v. Stough, 101 Ark. 398, 142 S.W. 512 (on rehearing).

A further examination of appellants’ abstract and brief, then, is in order. In the statement of the case appellants assert that they claim a tract lying south of the present channel of the Arkansas River alleged by them to be formed by accretions. There is no question but what the claim to the lands I would direct be awarded to them was asserted in an amendment to appellants’ complaint shown in the abstract. There they claimed this part as that portion of Beaver Dam Island which formed within the boundaries of land owned by them and their predecessors in title.

This case, then, presents a situation that I think calls for the action I would take. This court has held a brief not subdivided according to the points for reversal listed was not a deficiency so serious as to require summary affirmance. Tumlison v. Harville, 237 Ark. 113, 372 S.W. 2d 385. This court also granted a rehearing in a case where it originally took statements in a brief of appellee designating a certain tract as the tract in controversy as abandoning its claim to an adjoining tract. Sadler v. Campbell, 150 Ark. 594, 236 S.W. 588.

While it might be said that in this manner appellee had no chance to respond, appellee actually did respond and claimed under the authority of an Illinois case and a Kansas case that an addition or extension of the island by accretion became the property of the owner of the island.

I thoroughly agree that we should correct mistakes in our original holding on rehearing, hut the approach taken here to deny appellant relief granted in the original decision by first finding that there was waiver of the point on which that relief was based on rehearing seems to me to be- without precedent. I would not categorically say that it was never appropriate, but under the circumstances of this case I deem it improper.

J. Fred Jones, Justice-,

dissenting. I agree that the petition for clarification was correctly treated as a petition for rehearing in this case and I agree that the petition was properly granted.

I do not agree with the majority in denying to the appellants the title and possession of the land .they bought and paid for and to which they proved their record title at the trial of this case. The effect of the majority .opinion as I view it, is to divest appellants of the proven title to a part of their land simply because they argued in their printed briefs that they claimed more land by accretion than they proved by purchase and failed to argue the record title to the land their deeds called for. It is my position that when this court tries, a case de. novo on appeal from a Chancery Court it should do so on the record and not on the briefs.

I can abide a rule of practice .that would prevent an appellant from adding land to his record title on a theory not argued in his brief, but I cannot abide a rule that would divest a proven record title in a case where more land is claimed by accretion than is proven by deed of conveyance simply because the theory of acquisition by accretion is argued in the brief rather than the fact of acquisition by deed of purchase as proven in the record.

Appellants proved their title to the southwest quarter of the northwest quarter of section 33 by deed of conveyance and also proved their title to that portion of the southeast quarter of the northwest quarter of section 33 south of the so-called chute which was formerly considered the Arkansas River. If any part of Beaver Dam Island falls within the boundary lines of the southwest quarter of the northwest quarter as the exhibits in the record indicate that it does, it is my opinion the appellants should be awarded possession of the lands enclosed within such boundaries even if they did acquire it by purchase as proven at the trial rather than by accretion as argued in their briefs. If appellees have cut and sold timber from any of this land, it is my opinion that the amount of timber cut should be determined and damages awarded.

I agree that the activities of the U.S. engineers in the area of this land either past, present or future have nothing to do with this lawsuit.

I would award possession of the above described lands to the appellants as prayed in their complaint and would remand for a determination of damages for timber, if any, cut and sold from said lands.


author: CarletoN Harris, Chief Justice.

text:
    Gene G. McCOY v. Guy H. STORY et al
    5-4389
    417 S. W. 2d 954
    Opinion delivered September 11, 1967

      John P. Gill, for appellant.

      John W. Bailey, for appellees.
   CarletoN Harris, Chief Justice.

This appeal relates to the validity of an Executive Proclamation issued by the Governor of Arkansas on May 24, 1967, and directed to the Pulaski County Board of Election Commissioners, calling a special election for November 7, 1967. The purpose of the special election is to elect a County Judge for Pulaski County, Arkansas. Appellee, Guy H. Story, instituted a taxpayer’s suit against the Board of Election Commissioners, seeking to restrain expenditures by the commission for such an election, and further seeking a declaratory judgment that the Governor’s proclamation was null and void. Gene G. McCoy, a voter, and appellant herein, by leave of the court, intervened, and sought judgment declaring the Governor’s proclamation to he valid. After the filing of additional pleadings by the parties, a written stipulation of fact was entered into, and the cause submitted to the trial court. That court held that the Governor’s proclamation was null and void, and of no effect, and the appellant’s intervention was denied and dismissed for the reason that there is no statute authorizing the election. Prom the the judgment so entered, appellant brings this appeal. For reversal, it is contended that Article 19, Section 5, of the Arkansas Constitution authorizes the election as called by the Governor.

Background of the litigation is as follows:

R. A. (Arch) Campbell duly assumed the office of County Judge on January 1, 1965, which term of office would normally have expired on January 1, 1967.
Tom Gulley was elected to the office of County Judge of Pulaski County, Arkansas, at a general election held on November 8, 1966, for a two year term beginning January 1, 1967. Mr. Gulley died November 24, 1966, prior to qualifying for the office to which he was elected.
R. A. (Arch) Campbell, the incumbent County Judge for Pulaski County, held over in office, and is still holding said office, pursuant to the Supreme Court decision in Justice v. Campbell, 241 Ark. 802, 410 S. W. 2d 601.

Article 19, Section 5, relied upon by appellant, provides as follows:

“All officers shall continue in office after the expiration of their official terms until their successors are elected and qualified.”

Appellant asserts that this provision is self-executing, i. e., it requires no implementation by the General Assembly, and this is the sole contention advanced by by appellant.

In Griffin v. Rhoton, 85 Ark. 89, 107 S. W. 380, quoting Judge Cooley, we stated:

“* * * A Constitutional provision may be said to be self-executing if it supplies a sufficient rule by means - of which the right given may be enjoyed and protected, or the duty imposed may be enforced; and it is not self-executing when it merely indicates principles, without laying down rules by means of which those principles may be given the force of law.”

It is at once apparent that the constitutional language here under discussion, to paraphase Griffin, only indicates a principle, viz., that a successor should be elected, and it is equally clear that no rules are laid down concerning such election which can be given the force of law. In other words, no method or procedure is afforded by which the right to elect may be enjoyed. Mainly, there is no mention of when such an election should be held, and the importance, and necessity, of this requirement will be subsequently pointed out. In fact, the reasoning set forth in this paragraph explains why, in Justice v. Campbell, supra, after holding that Article 19, Section 5, contemplated the filling of the term by an election, that we further stated:

“There are numerous instances in which legislation is appropriately enacted to implement the requirements of the Constitution.”

Appellant now asserts that onr holding, in effect, interpreted Article 19, Section 5, to read:

“All officers shall continue in office after the expiration of their official terms until their successors are elected at a special election and qualified.”

We do not agree. Article 7, Section 29, of the Arkansas Constitution provides that the judge of the county court shall he elected by the qualified electors of the county for a term of two years. This election is covered in Article 3, Section 8, which sets out that general elections shall be held biennially, and the General Assembly may fix the time. Amendment 29 to our Constitution provides for the filling of vacancies, but here, of course, all parties agree that no vacancy exists, and appellant likewise agrees that there is no statutory provision for a special election under the circumstances here at issue.

In urging that this court should adopt the interpretation (of Article 19, Section 5) set out in the italicized phrase, appellant states:

“In the instant case, if the judgment below is affirmed, the Legislature will indeed be authorized to continue any officer in office for an indefinite period simply by not providing for elections for his successor.”

Two cases from other states are cited as authority by appellant for his position, hut we consider neither case in point, and at any rate, our own cases are contrary to appellant’s position.

Let it first be said that the quoted argument is plainly erroneous, for failure of the Legislature to act will not continue the present Pulaski County Judge in office for an indefinite period of time — rather, the failure to act only continues him in office until the general election in November, 1968. Our early case of Merwin v Fussell, 93 Ark. 336, 124 S. W. 1021, uses language which is entirely pertinent to the case at hand. There, quoting McCrary on Elections, we said:

* * it must be conceded by all that time and place are the substance of every election,’ and that ‘it is, of course, essential to the validity of an election that it be held at the time and in the place provided by law.’ ”

It is further stated:

‘ ‘ The authority to hold an election at one time will not warrant an election at another time, and an election held at a time not fixed by the law itself will be void.”

The matter is governed purely by statute, of course, because the system of elections followed in the United States was unknown to the common law.

Article 19, Section 5, of our Constitution does not specifically order an election, nor does it fix any time for holding such an election, and this being true, the language of our court in Simpson v. Teftler, 176 Ark. 1093, 5 S. W. 2d 350, is completely applicable:

‘ ‘ The Legislature alone had authority to provide for an election, and any election held without authority is a nullity.”

Justice v. Campbell, supra, is here controlling. In that opinion, we stated that implementary legislation by the General Assembly was necessary; had we felt otherwise, we would simply have held that the Constitution directed that an election be held forthwith.

Affirmed.

      Originally, Section 8 set the general election for the first Monday of September, but the General Assembly, under the authority of the amendment, changed the date of such elections to the Tuesday next after the first Monday in November, in every second year, and this applies to all elective state, county, and township officers “whose term of office is fixed by the Constitution or General Assembly at two (2) years.”

      Amendment 29 provides that vacancies (except those occurring in the offices of Lieutenant Governor, members of the General Assembly, and Representatives in the Congress of the United States) shall be filled by appointment by the Governor. It will be observed that except for the offices enumerated in parenthesis, the people, in passing this amendment, set forth this manner of filling vacancies in constitutional offices, rather than by special elections.

        State v. Thoman, 10 Kansas 191 (1872); and Gray v. Bryant, 125 So. 2nd 846.

      Of course, the successor to the present judge would not take office until the following January,


author: George Rose Smith, Justice.

text:
    CARLISLE SCHOOL DISTRICT No. 3 of Lonoke County v. CARLISLE DEVELOPMENT CO. et al
    5-4242
    417 S. W. 2d 952
    Opinion delivered September 11, 1967

      J. B. Reed, for appellant.

      James M. Thweatt and Joe P. Melton, for appellees.
   George Rose Smith, Justice.

The district resisted the company’s proposal on two grounds: First, the district contended that its streets were private thoroughfares not open to indiscriminate use by the public. Secondly, the district insisted that along the entire length of its eastern boundary there was an undedicated buffer zone, varying from 12 to 29 feet in width, which separated its street network from its east boundary line and which the development company was not entitled to cross in order to obtain an outlet for its own street system.

When the development company refused to recognize its neighbor’s contentions the school district brought this suit against the company and two of its officers, to restrain them from carrying out their proposal. After a trial the chancellor found in favor of the defendants, holding that there was actually no buffer zone along the edge of the school land and, secondarily, that even if such a strip existed the amount of land taken by the development company’s connecting street would be so small as to bring the case within the de minimis doctrine. This appeal is from the ensuing decree.

In this court the appellees concede that the chancellor was in error in applying the rule of de minimis to a controversy involving real property. In a case markedly similar to this one, Brown v. Land, Inc. 236 Ark. 15, 364 S. W. 2d 659 (1963), which turned upon the existence of bnffer zones between subdivisions, we adhered to our earlier cases rejecting the de minimis principle with respect to the ownership of land.

Upon the remaining issue we find the preponderance of the evidence to be against the chancellor’s conclusion that there was actually no buffer strip of undedicated land between the school district’s east boundary line and a gravel north-south street running close to that boundary.

There is no contention that the north-south street in question had ever been formally dedicated, so that its exact location might be determined by referring to a plat. To the contrary, this gravel street was simply a part of the network that the school district created upon its own campus for the use of its patrons and others having occasion to visit the school grounds. The county surveyor, testifying for the district, declared positively that the buffer zone east of the north-south street does exist. His testimony was corroborated by a plat prepared by the development company’s own civil engineer, which clearly shows the buffer zone. While it is true that this engineer’s plat was introduced only for the limited purpose of showing “the physical layout of the school and its campus and the thoroughfares ... or streets,” we think that the question of the correct location of the north-south street falls within the purpose for which the plat was received in evidence.

Furthermore, other testimony shows without dispute that the district’s eastern boundary line was marked by an old fence and by a ditch lying between that fence and the north-south road. Opposed to the convincing proof that supports the school district’s position there is only the testimony of the development company’s officers that when they bought their tract they thought the north-south road to be the boundary. We quote a typical excerpt from the testimony of the development company’s president:

Q. State, sir, where you consider your property line to be, the development company’s property line to be with respect to the north-south road or street.
A. "We considered the north-south road was the line.
Q. Was this based on any survey or engineer’s work that was done by you?
A. No, sir.
Q. Based on general idea of you and the public generally?
A. Yes, we just supposed the road was the line.

Our study of the record persuades us that the decided weight of the evidence supports the school district’s position. However, in remanding the case for the entry of a decree in favor of the district, we point out that the chancellor’s preliminary injunction was much too broad in that it prohibited the defendants from entering upon the school property at any time whatever —even, for example, to attend a football game. There is no need for the decree to go beyond protecting the buffer strip from intrusion.

Our conclusion makes it unnecessary for us to decide whether the district’s streets are public or private thoroughfares.

Reversed.


author: Lyle Brown, Justice.

text:
    Johnny EDINGTON v. STATE of Arkansas
    5258
    418 S. W. 2d 637
    Opinion delivered September 11, 1967
    [Rehearing denied October 16, 1967.]

      Paul K. Roberts, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

Johnny Edington was adjudged guilty of voluntary manslaughter. The first of two points advanced for reversal is that the court should have held appellant Edington’s “confession” inadmissible. The facts incident to this contention are brief.

Theodias Jimmy Turner died as a result of a knife wound received at the home of Gracie Broughton. Mrs. Broughton was taken to the police station in Fordyce for questioning. She disclosed that Edington was the only adult in the room with Turner at the time of the stabbing. An officer immediately located Edington at borne and in bed. Edington was not then aware the knife wound had proved fatal to Turner. When the officer and Edington walked into the room in City Hall, Mrs. Broughton advised Edington of Turner’s death and asked why he stabbed Turner. Edington responded that “he loved her” and was jealous of Turner. The officers did not instigate the conversation nor did they make any effort to stop it. They recounted the conversation in an in-chambers hearing. There the court held the conversation to be admissible.

Appellant argues that the recited testimony of the officers, should have been excluded under Escobedo v. Illinois, 378 U. S. 478 (1964) and Miranda v. Arizona, 384 U. S. 436 (1966). He insists that these decisions require the warnings in Miranda to be given at the moment a suspect is first taken into custody. This is not required in every instance of arrest or detention. The officer who went after Edington was merely instructed to bring him to headquarters. The officer did not interrogate Edington and consequently had no reason to give Edington the Mircmda warnings. Nor is this a situation where officers set up a conversation between the suspect and another in order to obtain an admission of guilt. The trial court heard evidence of a spontaneous admission by the suspect to his friend, Mrs. Broughton. The trial court correctly admitted the evidence. See Turney v. State, 239 Ark. 851, 395 S. W. 2d 1 (1965).

Secondly, appellant urges that the eyewitness testimony of Mrs. Broughton’s eleven-year-old son constituted reversible error. The boy was in the fourth grade and had never failed in school. He attended Sunday School and named his teacher. He was questioned about the effect of an oath. His account of the incident of the stabbing was coherent. Rigid cross-examination failed to disturb him. The trial court, in its discretion, concluded that the boy met the oft-recited tests of understanding the obligations of an oath and had the ability to receive and transmit accnrate impressions of the events. Batchelor v. State, 217 Ark. 340, 230 S. W. 2d 23 (1950).

Affirmed.


author: John A. Fogleman, Justice.

text:
    Marcellus A. SMITH v. STATE of Arkansas
    5275
    418 S. W. 2d 627
    Opinion delivered September 11, 1967
    [Rehearing denied October 16, 1967.]

      Allan Dishongh and Harry Robinson, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant was convicted of involuntary manslaughter alleged to have been committed on September 5, 1964. The information charged that Audrey Marie Barnes died as the result of having been struck by an automobile being driven by appellant Smith in reckless, willful and wanton disregard for the safety of others.

The State offered evidence tending to show that appellant was under the influence of intoxicating liquors at the time of the collision from which the death of Audrey Marie Barnes resulted. The evidence on behalf of the State included the testimony of Officer Gachot of the Little Rock Police Department regarding the results of a ‘‘Breathalyzer” test given appellant. This test was administered within a reasonably short time after the collision for the purpose of determining the alcoholic content of appellant’s breath.

As a basis for reversal appellant contends that the trial court committed error in allowing the officer to testify regarding the test and its results. It is further contended that the trial judge committed error in making the following statement in the presence of the jury-after an objection by appellant’s attorney:

“I will sustain you on that last objection, as far as that goes, but I am going to hold this man is competent to give these tests. He has given thousands of them. Go ahead.”

In support of appellant’s first ground for reversal he contends that the results of the test were inadmissible because the State failed to show that the test was a chemical analysis made by a method approved by the Director of the State Board of Health and/or the Director of Arkansas State Police as required by the provisions of Ark. Stat. Ann. § 75-1031.1 (Supp. 1963). We think that such a showing is a part of the foundation to be laid for the introduction of the results of such tests or analyses. At the time the result of the test was offered in evidence, appellant made no specific objection to its introduction because of this deficiency. At that time there was a general objection and a specific one. The latter was only upon the ground that the witness was' not qualified, was incompetent to testify upon the workings of the machine and had no special training to operate it. Obviously, the specific objection had nothing to do with the lack of proof of the required approval of the method. A general objection ordinarily is sufficient to raise questions as to the competency or relevancy of testimony, but it does not reach the absence or insufficiency of the foundation necessary or appropriate for its introduction because it fails to apprise the court of the deficiency or give the adverse party an opportunity to supply it. Vaughan v. State, 58 Ark. 353, 24 S. W. 885; Western Union Telegraph Co. v. Alford, 110 Ark. 379, 161 S. W. 1027, 50 LRA 94 (ns); Linn-McCabe Co. v. Williams, 116 Ark. 307, 172 S. W. 895.

The only time when any question was raised as to the failure of the State to show that the “Breathalyzer” test was a method approved by proper authority was in appellant’s objection to the giving of an instruction advising the jury of the rebuttable statutory presumption that appellant was under tbe influence of intoxicating liquors if there was 0.15 per cent, or more, by weight of alcohol in appellant’s breath. This was too late. Warren v. State, 103 Ark. 165, 146 S. W. 477.

The second ground for reversal is based upon the contention that the trial court erred in holding that the witness was a competent operator of the machine, qualified to testify as to the results of the test. Neither the propriety of the procedure followed, the operating order of the equipment, or the condition of the materials used in making the test was questioned.

It seems to be conceded that the qualification of the operator is one of the necessary components of a proper foundation for the introduction of the results of such a test. See Stacy v. State, 228 Ark. 260, 306 S. W. 2d 852. Officer Gachot testified that he had been operating the machine as a part of his duties for three and a half years and couldn’t count the number of sobriety tests he had given. He supposed that he had given hundreds and hundreds of them. He briefly outlined the operation of the machine, admitting that he did not know how the “inside” worked. He said that he did know how to work it and had been to school to learn to operate it.

The qualifications of a witness, the competency of whose testimony depends on his skill in a particular field, are largely within the discretion of the trial judge. His determination will not be disturbed by this court except in extreme oases where there is manifest error or abuse of discretion resulting in prejudice to the complaining party, even though this court might have decided differently. Roark Transportation, Inc. v. Sneed, 188 Ark. 928, 68 S. W. 2d 996; Ratton v. Busby, 230 Ark. 667, 326 S. W. 2d 889, 76 ALR 2d 751; Fireman’s Ins. Co. v. Little, 189 Ark. 640, 74 S. W. 2d 777; Lee v. Crittenden County, 216 Ark. 480, 226 S. W. 2d 79; Arkansas Power & Light Co. v. Morris, 221 Ark. 576, 254 S. W. 2d 684. While we think that the testimony as to the qualification of this officer was minimal, we are unwilling to say that there was any abuse of discretion in admitting the evidence of the test on this ground.

Affirmed.

Byrd, J., not participating.


author: J. Fred Jones, Jnstice.

text:
    James GIVENS v. STATE of Arkansas
    5276
    418 S. W. 2d 629
    Opinion delivered September 11, 1967
    [Rehearing denied October 16, 1967.]

      Fred A. Newth Jr. and Harry Robinson, for appellant.

      Joe Purcell, Attorney General; Bon Langston, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Jnstice.

This is an appeal from the Jefferson C'onnty Circuit Court denying appellant’s motion to discharge the appellant and dismiss the information filed against him, and in overruling appellant’s subsequent motion to set aside a jury verdict and grant a new trial.

The record reveals the following facts: On April 4, 1966, informations were filed by the prosecuting attorney in Jefferson County, charging the appellant Givens, and also one Martin, with armed robbery, and a bench warrant was issued for the appellant. The warrant was served and appellant taken into custody on July 13, 1966. Appellant remained in custody, unable to make bail, until his jury trial on January 23, 1967.

On January 23, 1967, prior to trial, the appellant filed a motion for his discharge and for dismissal of the information filed against him, because he had been in jail since his apprehension and had not been permitted to enjoy the right of a speedy trial as provided in the state and federal constitutions. The motion was overruled by the trial court, the jury returned a verdict of guilty and fixed punishment at seven years in the penitentiary. Appellant waived the forty-eight hour delay in sentencing and was sentenced to seven years in the state penitentiary by order of the court entered on January 23, 1967. Appellant’s subsequent motion for a new trial was overruled and this appeal is from the orders denying the motions.

Appellant sets out two points he relies on for reversal, as follows:

“1. Defendant’s incarceration in Pulaski County jail under hold order and subsequent incarceration in Jefferson County jail, with trial passed twice over defendant’s strong objections was in violation of defendant’s civil, state, and federal rights to a speedy and public trial as guaranteed by the Arkansas and United States of America Constitutions.
2. Once such right accrued to defendant the court erred in overruling defendant’s motion to discharge the accused and dismiss the information filed herein.”

All the evidence, in the record before us, is directed to the delay in trying the case after appellant was arrested. On July 14, 1966, appellant’s attorney wrote a letter to the prosecuting attorney requesting that the case be placed on docket for an early trial. On August 9, 1966, appellant’s attorney again wrote to the prosecuting attorney calling attention to an agreement to try the case as soon as possible and requesting the prosecuting attorney to contact the trial judge in an effort to get the case set for trial. On October 21, 1966, appellant’s attorney advised the appellant that his case had been set for trial on December 1, 1966.

The record indicates that the appellant and his co-defendant may have been tried together. In any event, no motion for severance is in the record and the record reveals that an attorney was appointed by the court to represent appellant’s co-defendant, and that the court, on its own motion, passed the cases for trial on December 1, 1966, because the co-defendant’s counsel had not had time to prepare for trial following appointment. On December 7, 1966, appellant’s counsel wrote a letter to to the Circuit Judge requesting a jury trial at the earliest possible date and the case was tried on January 23, 1967.

A second postponement in the trial of the case was mentioned at the hearing on motion in chambers and is referred to in appellant’s brief, but the record is not clear as to any other specific dates the appellant’s case was set for trial except on December 1, 1966, when it was passed, and on January 23, 1967, when it was tried.

Appellant concludes his brief as follows:

“The question here is whether an incarceration from April 4, 1966, to January 23, 1967, with accused constantly demanding trial, and with trial passed over twice over defendant’s objections, despite only two trials in eight months, is a violation of appellant’s constitution guarantees of speedy trial. ’ ’

The record before us does not sustain the contention that appellant was incarcerated from April 4,1966, to January 23, 1967, on the charges for which he was tried. The sheriff’s return on the bench warrant is as follows:

“I hereby certify that I have executed the within Bench Warrant by taking the body of the within named James Givens C. M. who is now in custody subject to the orders of the Court, this 13th day of July, 1966.”

The appellant argues in his brief f at he had been held in jail for eight months awaiting trial, but he testified on the day of his trial that he had been in custody about six months.

A trial court has a great deal of discretion in the postponement of trials under Ark. Stat. Ann. § 43-1705 (Repl. 1964). This is necessarily so in the orderly conduct of the business of the courts in the various counties of a district, and the work of a trial judge in a four court district cannot be accurately measured by the number of jury trials alone, conducted in any one of the courts of the district. We find no abuse of discretion by the trial court in the case before us, and we are of the opinion that appellant’s right to a speedy trial was not violated in this case.

Information was filed, warrant issued, and the appellant taken into custody during the March 1966, term of Jefferson County Circuit Court, and appellant was tried in the following October 1966 term. (Ark. Stat. Ann. § 22-310 [Repl. 1962]).

Ark. Stat. Ann. § 43-1708 (Repl. 1964) provides as follows:

“If any person indicted for any offense, and committed to prison, shall not he brought to trial before the end of the second term of the court having jurisdiction of the offense, which shall be held after the finding of such indictment, he shall be discharged so far as relates to the offense for which he was committed, unless the delay shall happen on the application of the prisoner.”

and Ark. Stat. Ann. § 43-1709 (Repl. 1964) limits the time a person may stand indicted without trial while free on bail.

We do not agree with appellant’s argument that Ark. Stat. Ann. § 43-1705 “is unconscionable and not attune with recent decisions of the United States Supreme Court.” Section 43-1705 provides for postponement of trial “upon sufficient cause shown by either party” and the cases indicate that defendants have invoked the provisions of this statute far more often than the prosecution.

The United States Supreme Court case of Klopfer v. State of North Carolina, 35 Law Week 4248, cited by appellant, is not in point with the case here.

In the Klopfer case the defendant was indicted for criminal trespass on February 24, 1964. He was tried in March of 1964, but the jury failed to reach a verdict and the case was continued for the term. Prior to the April 1965, session of the court, the prosecuting attorney informed the defendant that he intended to have a “nolle prosequi with leave” entered in the case, hut instead, the prosecuting attorney moved to continue the case for another term and the motion was granted. The case was not set for trial in the August 1965 session and the defendant filed a motion to have the charge pending against him permanently concluded in accordance with the applicable laws of the state of North Carolina and the United States as soon as is reasonably possible, noting that some 18 months had elapsed since the indictment. In response to the motion, the trial judge considered the status of the defendant’s case in open court in August 1965, and at that time the prosecuting attorney moved the court that the state he permitted to take a “nolle prosequi with leave,” and the court granted the motion over the defendant’s objections.

Nolle prosequi with leave under the North Carolina practice procedure was simply a method whereby an accused was permitted to remain free under indictment indefinitely or until such time, as the prosecuting attorney in his discretion, saw fit to reinstate the case and try the accused on the charge for which he stood indicted.

North Carolina did not have a statute for the protection of the accused like our Ark. Stat. Ann. § 43-1708, supra. We are of the opinion that this statute is sufficient security in Arkansas for the speedy trial contemplated by the constitutions of Arkansas and the United States, and we find nothing in the record before us that would justify the shortening of that period by our decision in this case.

The judgment and orders of the trial court are affirmed.


author: Conley Byrd, Justice.

text:
    Jim Pate CHANDLER v. STATE of Arkansas
    5279
    417 S. W. 2d 957
    Opinion delivered September 11, 1967

      Alfred Featherston, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant, Jim Pate Chandler, was convicted upon a charge of possessing an illicit still, Ark. Stat. Ann. § 48-936.1 (Repl. 1964). In his motion for new trial he listed six points upon which he relies for error here. Appellant in his brief has argued the six points under two general headings — i. e., (1) sufficiency of the evidence and (2) prejudice of his case by the trial court through comments on the evidence and in the maimer in which he intervened to correct and question witnesses.

The evidence shows that on September 20, 1966, early in the morning Deputy Sheriff Lewis Tollett, learning of a still in the vicinity of appellant’s home some three miles east of Dierks, drove by there accompanied by State Police Sergeant Ernest Hawthorne. Observing that appellant’s vehicle was not there, they parked some distance away and proceeded to a gravel pit. The still was found about a hundred yards south of the gravel pit near a pond and approximately 440 yards northeast from appellant’s home. The officers concealed themselves in the briars and waited. In about thirty minutes they heard a door slam and a pickup drive off in the direction of appellant’s home. About fifteen minutes after the door slammed, appellant came to the still from over the pond bank, walked straight past the first two barrels and took the cover off the third barrel. Appellant then walked toward the cooker from the barrel and back to the barrel. When appellant was arrested he was filling a glass jug in the third barrel. He told the officers that he was just passing by, smelled the mash and stopped to get a drink.

Upon further investigation the officers determined that the mash in the first two barrels, which appellant had walked by, was not as sour and milky-looking as that in the third barrel.

From the still, two well-beaten paths were observed. The one up over the dam to the pond was the most used but after that it petered out. The other path went southwesterly through the woods toward appellant’s house down an old road running parallel with the road that runs north and south in front of appellant’s house.

Sergeant Hawthorne testified that according to appellant’s reputation he was definitely involved in liquor. Other testimony showed that in 1955 he had pleaded guilty to having a still, had subsequently been fined for having untaxed liquor, and had recently been drunk on numerous occasions.

Under the circumstances, we hold that there was sufficient evidence to make a jury issue on the possession of a still.

Appellant’s contention that the trial judge showed his bias and prejudice against the defendant arises, principally, from the conduct of the trial judge during the prosecution’s examination of Deputy Sheriff Lewis Tollett and during defendant’s examination of his witness Harmon Chandler.

Upon the examination of Deputy Tollett, in answer to a question as to whether appellant had a reputation as to dealing or trafficking in illicit liquor, the witness had stated “Yes,” whereupon the following occurred:

“Q. What is that reputation?
A. He drinks it.
THE COURT: (To witness) No, just what they say about him dealing in it. Not whether he drinks it or not.
A. He drives up and down the road drunk.
THE COURT: (To witness) I don’t think you understood his question. He asked if he had a reputation for dealing in intoxicating liquors in that area, and you said he did have a reputation. Now, he wants to know if that reputation is1 good or bad.
A. Bad.”

During defendant’s examination of witness Harmon Chandler, counsel for defendant was attempting to elicit what appellant’s reputation was when the following occurred:

“MR. HARDEGREE: Your Honor, we object to any further questioning unless properly founded.
THE COURT: Yes, sir. If there was evidence showing he had a reputation for drinking it shouldn’t have been introduced. It could have been without objection. I think the question was, did he deal and traffic in intoxicating alcoholic beverages.
MB. FEATHERSTON: No testimony that he did, so if the Court would rule to exclude that other testimony, I now move that you do, and the jury consider no testimony on reputation, because he had no reputation of possessing or having anything to do with an illicit still. We need no further testimony on that.
THE COURT: Mr. Featherston, I am not permitted to comment on the evidence. I can say there was evidence introduced concerning his reputation for dealing in intoxicating beverages in recent times. There was evidence to that effect, by reputation only, and that’s all that is permitted, of course.
MR. FEATHERSTON: Then if the Court will let that testimony stay, then we are entitled to offset it.
THE COURT: You are entitled to show he has a reputation for being a peaceable, law abiding citizen if you desire to.”

The record fails to show any objection on appellant’s part with respect to any conduct of the trial judge challenged by appellant. In Graves v. State, 155 Ark. 30, 33, 243 S. W. 855 (1922), we held that , the failure to make such an objection or exception waived the alleged error on appeal. This is in accordance with our procedure, 15 Ark. L. R. 69, and we accordingly hold that appellant’s contention is without merit.

The judgment is affirmed.


author: Carleton Harris, Chief Justice.

text:
    NATIONAL INSURANCE UNDERWRITERS v. Annie Mae MATTHEWS, ex’x of the Estate of J. M. Matthews, deceased, and Individually
    5-4293
    418 S. W. 2d 391
    Opinion delivered September 18, 1967

      Moses, McClellan, Arnold, Owen & McDermott, for appellant.

      Marion S. Gill, for appellee.
   Carleton Harris, Chief Justice.

This litigation involves airplane insurance. J. M. Matthews owned a 1959 Piper Apache Airplane, and on April 1, 1966, purchased a policy of insurance from appellant company, National Insurance Underwriters, the company being hereafter referred to as “National,” or appellant. Under the policy, appellant agreed to pay to Matthews the sum of $15,000.00 (with a $1,000.00 deductible provision) in event the airplane was totally destroyed by coining into contact with the ground, subject, however, to certain exclusions, which form the basis of this litigation. On April 28, 1966, in Desha County, near Winchester, Arkansas, the plane, with Matthews as the sole occupant, crashed, killing Matthews, and totally destroying the aircraft. Thereafter, appellee, Annie Mae Matthews, widow, and executrix of her husband’s estate» made due proof of the loss of the plane, but National declined to pay the $14,000.00, tendering, however, the return of $840.09 in premiums. Suit was instituted to recover for the loss, and appellant defended the litigation upon the basis that such loss, due to an exclusion clause in the policy, hereinafter discussed, was not covered. The cause was submitted to a jury, which returned a verdict against appellant in the amount of $13,159.91. From the judgment entered on this verdict, National brings this appeal. For reversal, only one point is relied upon, viz., “There is no substantial evidence to support the verdict of the jury upon which the judgment entered was given.”

The exclusion in the policy of insurance relied upon by appellant, and which was pleaded as a defense, provides as follows: “This policy does not apply under Part III A. to loss * * * during or as a result of its the airplane’s operation:

* * *

(3) under Instrument Flight Rule (s) (IFR) conditions unless the pilot possesses a valid Instrument rating and is proceeding in accordance with Instrument Flight Rules;***”

The parties stipulated that Instrument Flight Rules conditions were conditions other than those authorized for visual flying under Visual Flight Rules, or conditions other than Visual Flight Rules (VFR) conditions. Matthews did not have an instrument rating, and was only authorized to fly by Visual Flight Rules. The pertinent portion of these rules provides as follows:

“(a) Distance from clouds.***, no person may operate an aircraft under VFR — ****
(4) Outside controlled airspace at an altitude of more than 1,200 feet above the surface, at a distance less than 500 feet below or 1,000 feet above, and 2,000 feet horizontally from, any cloud formation; or
(5) Outside controlled airspace at an altitude of 1,200 feet or less above the surface, unless the aircraft is clear of clouds.
(b) Flight Visibility.**** no person may operate an aircraft under VFR—
# # #
(3) Outside controlled airspace» unless flight visibility is at least one statute mile.”

It was stipulated that the crash occurred about four miles west of Winchester in an area not “known as controlled airspace area.” Appellant simply contends that the airplane was being operated under conditions controlled by the exclusion in the policy and that is the sole question for determination in this case.

Appellant concedes that the issuance of the policy, and the payment of the premium thereon, being established by appellee, the burden shifted to it to establish that the loss of the aircraft “was caused by a condition existing at the time by virtue of an incompetent pilot operating the aircraft under IFR conditions when he did not hold an instrument rating. * * *”

Five witnesses, residents of the area in which the mishap occurred, testified, three on behalf of appellant, and two on behalf of appellee. The testimony reflects that the plane circled several times before getting out of control, and the witnesses described sounds which indicated that the engine was not properly functioning. According to Shelby Appleberry:

“Yeah, and then it would, yon could hear it backfire, or pop, or whatever they do after I guess it was when he shut the throttles off. I don’t know all that much about it, but anyway when he would open this thing wide open it sound like and when he would close it down it would backfire and it done that two or three times. ’ ’

Morris Newton, who heard the noise and went outside his house, stated:

“When I first went outside the engines wasn’t running wide open there, they sounded like they were popping, cutting out. * * * It sounded more to me like they were opened up but stalling out.”

Virgil Abston testified:

“Well, I heard the plane make, go by my place in a generally southwesterly direction at which time I didn’t pay too much attention except that it did change the tone of the engines and I had during the daytime on other occasions noticed that some passenger planes had changed, would change their direction due to a cloud formation that they wanted to go around, nevertheless I didn’t go out to see until after this plane had made this pass in a southwesterly direction and turn and came and then went pretty well back in a northeasterly direction which was practically the opposite direction where I first heard it. In a few moments I noticed that the plane begin to make some unusual noises for a plane in the air at night or for that matter, in the daytime * *
* # *
Q. You made some mention of an unusual noise, you noticed something unusual about the motors, please explain that?
A. After I had gone out in the yard and before the .airplane appeared there was an unusual thing happened in my opinion, for an airplane and that is it appeared that the engines were either cut hack or that they were idled hack to just idle speed, and almost immediately then there was a pop or a normal cough for an engine whichever you want to say, and in a very few moments is when the airplane, I saw the airplane it was just almost in a vertical position, yes sir.”

All witnesses agreed that there were no storm conditions in the area where the crash occurred, nor was there wind, rain, or fog. There was also evidence that many of the farms had “night lights” which were burning. The plane crashed at a very slight angle, almost completely vertical. Though there was some testimony to the effect that the witnesses, on going outside of their homes to observe what was happening, could not at all times see the plane (and the time was “dusk dark”), not a single witness testified that he saw the aircraft emerge from a cloud. They could not state (when unable to see the aircraft) whether the plane was above a cloud, or in it, or whether the pilot simply did not have the plane’s landing lights on at all times.

Arthur L. Mayer, an airplane pilot, who lives at Dumas, testified as an expert. The witness has been flying 27 years, and has more than 27,000 hours flying time. He has frequently acted as an instructor, but does not have an instrument rating. He explained the regulation here in question by pointing out on a diagram that flying by Visible Flight Rules simply means that a person is:

* * * flying five hundred feet below the clouds and this one means a thousand feet above the clouds; in other words, there wouldn’t necessarily have to be two clouds here, that is just to show the point. He could fly under the cloud at five hundred feet, two thousand feet horizontally or one [statute] mile visibility outside a controlled zone, but he must stay a thousand feet above it.”

The witness stated that darkness» wind, and rain, in themselves, have nothing to do with Instrument Flying Rules conditions, and that IFR and YFR regulations are affected only by clouds and visibility.

Weather reports from Memphis, Little Rock, and Pine Bluff were introduced into evidence, and Mayer, after examining these, testified that the weather conditions existing, as shown in the reports, did not constitute Instrument Flight Rules conditions» because there was a minimum for visual flight. Mayer testified that he personally could have flown a plane under the conditions reflected by the weather reports without violating Instrument Flight Rules. The witness further stated that on the night of April 28, around 7:30 P.M. (the approximate time of the crash) he was returning home to Dumas from Belco Lake; that the moon and stars were shining, and there were only a few scattered clouds; that the conditions existing did not constitute IFR conditions.

Of course, it was the function of the jury to pass upon the facts, and we are only concerned with whether there was substantial evidence to support the verdict. Furthermore, as stated in Glens Falls Insurance Company v. Browning, et al, 228 Ark. 1087, 312 S. W. 2d 335, the testimony must be viewed in the light most favorable to appellee. When we consider these facts, it is evident that appellant has not met the burden of establishing that this plane was being operated in violation of the exclusive provision listed in the insurance policy. There simply was no proof as to the altitude of the plane, and not a single witness was able to say that the plane was ever flying in the clouds. Actually, there is as nraoli, if not more, evidence that the crash was caused by engine trouble.

Appellee requests an additional attorney’s fee in this court, and we are of the opinion that this should be allowed in the amount of $1,000.00.

It is so ordered.

Affirmed.

       Appellee points out that these lights would have aided Matthews in locating his position, and it is argued that this is another circumstance indicating that the plane was “in trouble,” rather than lost.

      According to t!h.e witness, a statute mile is 5,280 feet, i.e., the pilot must be able to see one mile.


text:
    Carl W. WIDMER v. Roy G. WOOD et ux
    5-4248
    420 S. W. 2d 828
    Opinion delivered September 18, 1967
    [Substituted opinion delivered November 13, 1967.]

      Carl W. Widmer, pro se, for appellant.

      Hardin, Barton, Hardin & Jesson, for appellees.
   George Rose Smith, Justice.

We cannot reach, the merits of this case. The timely filing of a notice of appeal is essential to our jurisdiction. Ark. Stat. Ann. § 27-2106.1 (Repl. 1962); see General Box Co. v. Scurlock, 223 Ark. 967, 271 S. W. 2d 40 (1954). Here the notice was filed too late.

The appellant, acting pro se, filed his complaint in the Sebastian Circuit Court for damages arising from an asserted breach of a contract by which the appellees sold him certain land in Oklahoma. After a series of interlocutory proceedings the court entered its final judgment on September 13, 1966, sustaining the defendants’ demurrer and motion to strike and dismissing the complaint for failure to state a cause of action.

On October 7 the plaintiff filed a motion asking the court to rescind its order of September 13 and to enter a summary judgment for the plaintiff. On November 17 the trial judge denied that motion. Two days earlier, on November 15, the plaintiff had filed his notice of appeal from the September 13 judgment. That filing was after the expiration of the thirty days allowed by the statute, supra. On November 23 he filed a second notice of appeal, referring both to the September 13 judgment and to the November 17 denial of his motion.

The motion to rescind the September 13 judgment is to be treated as a motion for a new trial. Hill v. Wilson, 216 Ark. 179, 224 S. W. 2d 797 (1949). Such a motion to vacate does not extend the time for appealing from the original'final judgment; for if that were so the appellant could obtain a review of the judgment even though he had not taken his appeal within the time allowed by statute. Sheffield v. Brandenburg, 190 Ark. 60, 76 S. W. 2d 984 (1934); Pearce v. People’s Sav. Bk. & Tr. Co., 152 Ark. 581, 238 S. W. 1063 (1922).

Nor has the appellant brought himself within Act 123 of 1963, Ark. Stat. Ann. §§ 27-2106.3 to 27-2106.6 (Supp. 1965), which we construed in St. Louis S. W. Ry. v. Farrell, 241 Ark. 707, 409 S. W. 2d 341 (1966). As we said there: ‘ ‘ Section 1 of Act 123 requires that any motion for a new trial be filed within the time provided by law. That time is ordinarily a period of fifteen days after the rendition of the verdict. Section 27-1904.” In the case at bar the plaintiff’s motion to rescind the Judgment, which, as we have seen, was in substance a motion for a new trial, was not filed within fifteen days after the entry of the September 13 judgment. Section 27-1904 provides for an extension of the fifteen-day limit in exceptional circumstances such as an unavoidable delay, but no such showing is made here. It follows that the belated filing of the motion to rescind did not bring the appellant within the purview of Act 123.

The clerk of this court was right in accepting the record when it was tendered for filing, for on its face there was a timely notice of appeal from the trial court’s denial of the motion to rescind. That denial, however, did not extend the time for appealing from the original final judgment or from prior interlocutory orders, and no other error is asserted.

Affirmed.


text:
    Ronnie Lee ELSER v. STATE of Arkansas
    5284
    418 S. W. 2d 389
    Opinion delivered September 18, 1967

      Roy Mitchell, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

This is a petition for post-conviction relief under our Criminal Procedure Rule No. 1. 239 Ark. 850a. The trial court denied the petition.

In October, 1965, the appellant, Ronnie Lee Elser, and a codefendant, Victor Houk, were charged with having robbed two motels in Garland county. At the arraignment Elser declined the offer of the trial judge, P. E. Dobbs, to appoint counsel for him. Elser pleaded guilty to one charge and not guilty to the other. No evidence was introduced except written statements by the two defendants, both of whom said that Elser had nothing to do with the robbery of one of the motels, the Sands. The trial court nevertheless found Elser guilty upon both counts and imposed a sentence of imprisonment for fifteen years, with five years suspended on condition of good behavior.

Two months later Elser filed his present petition, in which he asserted his complete innocence of both offenses. He attributed his earlier plea of guilty to brutality on the part of the Little Rock police when he was first arrested and to his fear of similar mistreatment by the Hot Springs police if he insisted on his innocence. When the Rnle 1 petition was filed Judge Dobbs appointed Earl Mazander, a member of the Grarland county bar to represent Elser. After a hearing, at which Elser and several police officers testified, the court entered an order finding that Elser had committed perjury and that the relief sought should be denied.

For reversal it is argued that in the original arrest and arraignment the appellant’s constitutional rights were violated in several respects. We do not reach those issues, because, unfortunately, it is apparent from the record that Elser did not receive in the court below the impartial hearing to which he was entitled. It is evident that from the outset Judge Dobbs had a preconceived conviction that the assertions in the Rule 1 petition were false. Again and again he intervened in the presentation of the evidence, exhibiting such unmistakable bias and such a prejudiced demeanor as to render his findings of no value to this court. To make our point clear we think it sufficient to quote a few excerpts from the record.

The Court: Now you’ve filed a petition in here because your rights have been violated by — under the Constitution. You’re representing him. I appointed you to represent him?
Mr. Mazander: That’s correct, you honor.
The Court: You know I’m getting tired of you guys coming in here to court and I’ve got to appoint somebody to represent you. All right, put on your evidence.
Circuit Clerk, Mr. Hilliard [to Elser]: Will you raise your right hand and be sworn please, sir?
The Court: I don’t think that would do any good but go ahead and swear him.
* # *
The Court: Do you mean to tell me that you still don’t admit that you robbed the Holiday Inn!
A. I did not rob the Holiday Inn.
The Court: You walked in there and knocked a poor old man in the head with a pistol and you don’t admit it?
A. I did not.
* * * # *
The Court: Just a minute, answer my question. You were identified as the person who used a pistol and beat this poor old man over the head, aren’t you?
A. We were identified.
The Court: Okay ... I know more about this case than you do, just about as much about it.
The Court: Just a minute. He’s a thug [referring to Houk, the eodefendant] just like you are, isn’t he? Uh? You want to admit it?
A. I don’t know as I’m a thug, your honor.
The Court: If you wasn’t a thug why did you,go down there and take a pistol and hit an old man over the head?
A. I denied that.
The Court: I know you denied it, but it’s the truth. Just like I am right now, I’m a little bit worked up, too.
The Court: Mr. Whittington [the prosecuting attorney], I think he’s admitted everything he wanted to. I want to file a perjury charge against him. But he’s admitted everything—
Mr. Whittington: Sir, we haven’t made a liar out of him yet.
The Court: Huh?
Mr. Whittington: Give me about five minutes, sir.
The Court: Okay ... I would like to sentence him now for 20 more years. [To this point no one had testified except Elser, who denied his guilt.]
# * # # *
The Court: Let me say this to you, Mr. Mazander. There was no warrant. I issued the warrant the next day.
Mr. Mazander: Your honor, I’m just trying to make a record. We allege in this petition that it was an illegal arrest, and I think I ought to be able to put in evidence that this Lieutenant—
The Court: How is there going to be an illegal arrest? You just answer me one question, how is it going to be illegal arrest when two thugs come inhere and beat an old man with a pistol?
# • # # *
Mr. Mazander: That’s all the testimony, your honor.
The Court: I want him to stand up. At the time I gave you a sentence I gave you fifteen years, five suspended. Now since you came in here and lied like a dog against all the police officers and everybody I’m going — you know what — I’m going to put that up five year, ’cause you in my opinion, you’ve just lied like nobody’s business. You admit it’s your pistol, don’t you?
A. I did not admit that was my pistol.
Q. You admitted you had one, didn’t you?
A. I had a pistol.
Q. And you admit robbing the Holiday Inn?
A. I deny that.
Q. You do, eh? I tell you what I’m going to do. I’m going to suspend this other five years. I want you to go down for fifteen more years and don’t come back up here before me again. Now that’s all I’ve got to say — I’m going to suspend — I gave you ten and I suspended five of it trying to give you a chance. And you’ve come up here and lied before all the officers and everybody else. I want you to go back down there where you belong. The Sheriff will take him back down there and lock him in the cell and deliver him to the penitentiary. I want you to take him to the penitentiary yourself, for somebody—
Mr. Mazander: If it please the court, your honor, I’d like to enter into the record the objection to the changing of the original sentence.
The Court: Mr. Mazander, I think you know that I retained your assistance.
Mr. Mazander: That’s correct, your honor, but I want the objection in the record.
The Court: Okay, you can object, ’cause I’m going to give him another five years down there for coming back up here.

As we have indicated, we attach no weight to the trial court’s findings. It is evident that the trial judge should have withdrawn from the case when the petition came on to he heard. A new hearing is accordingly necessary. Even though the testimony has been extensively developed and is before us, in cases at law it is not our province to decide issues of fact when the evidence is in conflict. Boatner v. Gates Bros. Lbr. Co., 224 Ark. 494, 275 S. W. 2d 627, 51 A. L. R. 2d 326 (1955). Of course we do not imply that Riser’s uncorroborated testimony outweighs that of the five police officers who testified for the State, or vice versa. The circuit judge who hears the case on remand (Judge Dobbs having retired) will pass upon contested issues of fact.

Reversed.