author: Sam Robinson, Associate Justice.

text:
    Poland and Stephens v. State.
    4982
    339 S. W. 2d 421
    Opinion delivered October 31, 1960.
    [Amended November 22, 1960.]

      McKnight and Blackburn, for appellant.

      Bruce Bennett, Atty. General, by Clyde Calliotte, Asst. Atty. General, for appellee.
   Sam Robinson, Associate Justice.

Appellants, Poland and Stephens, white men, were charged in separate felony informations with the crimes of concubinage. Two informations were filed against Poland, one charging him with committing the crime of concubinage with Euthie Lee Smith, a Negress, on December 11, 1959, and the other information charging him with a like offense committed with the same woman on the 17th day of December. The felony information filed against Stephens charged him with committing the crime of concubinage on the 17th day of December, 1959, with Lula Mae Wallace, a Negress. All the cases were consolidated for trial. The only issue we reach is whether according to the undisputed facts the appellants are innocent as a matter of law of the crimes charged.

Concubinage is a felony. Ark. Stat. § 41-806. The crime is defined by Ark. Stat. § 41-807, which provides: “The living together or cohabitation of persons of the Caucasian and of the Negro race shall be proof of the violation of provisions of section one [§ 41-806] of this act. For the purpose of this act [§§ 41-806 — 41-810], concubinage is hereby defined to be the unlawful cohabitation of persons of the Caucasian race and of the Negro race, whether open or secret.”

The question is: Did the white men and the Negro women cohabit within the meaning of the statute? According to the evidence, the appellant Poland on two separate occasions, the 11th and the 17th of December, went to a tourist court with the Negress, Euthie Lee Smith, and engaged in sexual intercourse, and appellant Stephens went to the same tourist court with Lula Mae Wallace on December 17th and engaged in sexual intercourse. There is not any evidence of any illicit relationship between the individuals at any other time or place. This case is controlled by other cases heretofore decided by this Court. In Hovis v. State, 162 Ark. 31, 257 S. W. 363, Mr. Justice Frank Smith said: “The testimony shows that appellant had met the colored girl for the purpose of having sexual intercourse with her on the night of his arrest, and that he had met her on frequent prior occasions for the same purpose. This, however, does not constitute concubinage as defined by the statute. The statute creates and defines the offense. There is no testimony that the appellant and the colored woman were living together, or had ever done so. ’ ’ In Wilson v. State, 178 Ark. 1200, 13 S. W. 2d 24, evidence proved beyond a reasonable doubt that a white person and a Negro had engaged in sexual intercourse. Mr. Justice Mehaffy, speaking for the Court, said: “The testimony in this case is ample to show that the appellant and the negro were guilty of adultery, but that does not constitute concubinage.”

In McClure v. McClure, 205 Ark. 1032, 172 S. W. 2d 243, a divorce case, the Court held that cohabitation as used in the three year separation statute means an act of sexual intercourse; but that in determining the meaning to be given to words used by the Legislature, recourse often must be had to the context in which the language is used. The Court cited and left unimpaired the decisions in Sullivan v. State, 32 Ark. 187; Taylor v. State, 36 Ark. 84; Bush v. State, 37 Ark. 215; Turney v. State, 60 Ark. 259, 29 S. W. 893; and Hovis v. State, 162 Ark. 31, 257 S. W. 363, all of which hold that cohabitation as used in the unlawful cohabitation and concubinage statutes means something more than occasional acts of sexual intercourse.

The State contends that Act 108 of 1959 amending Ark. Stat. § 41-805 has the effect of amending the concubinage statute. The 1959 act has no application to the concubinage statute at all. It applies to Ark. Stats. § 41-805, making it unlawful for a man and woman of any race to cohabit together as husband and wife without being married. Under § 41-805 as amended by Act 108 of 1959 the first two offenses are misdemeanors, whereas any violation of the concubinage statute is a felony.

Reversed and dismissed.


source: Caselaw Access Project

author: Jim Johnson, Associate Justice.

license: Public Domain

text:
    Hardin v. State.
    4987
    339 S. W. 2d 423
    Opinion delivered October 31, 1960.

      Harold Sharpe and Carroll C. Cannon, for appellant.

      Bruce Bennett, Atty. General, by Clyde Calliotte, Asst. Atty. General, for appellee.
   Jim Johnson, Associate Justice.

Appellant J. A. Hardin, a white man, was convicted of the crime of concubinage which is a felony. See Ark. Stats. §§ 41-806, 41-807. It was established that J. A. Hardin took a negro woman to a tourist court and had sexual intercourse with her. There was no effort on the part of the State to prove that Hardin and the Negro woman ever lived together in any way except in the act of sexual intercourse at the tourist court.

Hardin contended in the lower court and contends here that sexual intercourse standing alone is not sufficient evidence of the crime of concubinage. He raises other questions in this Court but we'need not discuss them.

This ease of Hardin was consolidated for oral argument in this Court with the case of Poland and Stephens v. State, 231 Ark. 669, 339 S. W. 2d 421, and the opinion delivered this day in the Poland and Stephens appeal clearly disposes of the present case. Therefore, in light of the opinion in the said Poland and Stephens, supra, the judgment of the Circuit Court in this case is reversed and the cause dismissed.


author: Carleton Harris, Chief Justice. J. Seaborn Holt, Associate Justice,

text:
    Lavender v. City of Rogers.
    5-2232
    339 S. W. 2d 598
    Opinion delivered November 7, 1960.

      Bob Scott and Walter Davidson, for appellant.

      J. Wesley Sampier, for appellees.
   Carleton Harris, Chief Justice.

Appellant entered into a contract with Rogers School District No. 30 to construct a high school building. Appellees required appellant, under authority of City Ordinance No. 385, to obtain a building permit, which appellant obtained by paying the sum of $382. Thereafter, Lavender instituted suit in the Benton County Chancery Court, alleging that the “exaction of $382.00, was and is an illegal and unconstitutional exaction from the plaintiff, under the laws and constitution of the State of Arkansas. That the laws of the State of Arkansas do not authorize cities of the State of Arkansas to regulate the construction of public school buildings, but rather delegate such power to the State Board of Education”; appellant further alleged that he made the payment required by the ordinance under protest, and had made demand for refund to the City Council of Rogers; that the City Inspector for Rogers had frequently harassed his employees, threatened to stop work on the job, and engaged in other activities to cause considerable loss and damage to appellant; that if work on the project were stopped, he (appellant) would suffer irreparable injury. The prayer was that the Court restrain the City of Rogers and O. B. Hanks, the city inspector, from attempting to regulate the construction of the new facilities for the Rogers School District No. 30; that Ordinance No. 385 be held unconstitutional “in its application to this public work,” and that judgment be given appellant in the amount of $382. Appellee demurred to the complaint, and the court sustained the demurrer, giving appellant twenty days in which to plead further. Following the filing of an amended complaint (which elaborated on certain allegations in the original complaint), to which appellee also demurred, the court again sustained the demurrer, and no further pleadings being filed by appellant, dismissed the amended complaint as stating no cause of action. From this order of the court, appellant brings this appeal.

Appellant seeks relief in two respects. First, he seeks injunctive relief, and secondly, he desires a refund of the permit fee. Under the view that we take, it is unnecessary to discuss whether the allegations reflect the permit fee to have been paid voluntarily or involuntarily, for unless the allegations are sufficient to show the ordinance totally invalid in its application to the construction of school buildings, relief cannot be granted. In other, words, no charge is made that the tax is unreasonable or confiscatory, or that the ordinance is arbitrary or discriminatory. In fact, appellant does not argue that the ordinance is generally invalid, but only asserts that it is invalid as it relates to regulation of the construction of public school buildings, it being the contention of appellant that the Legislature has delegated full authority to the State Board of Education in this field.

The statutory authority upon which appellant relies, is found in Ark. Stats. Anno., Sections 80-113 (1960 Replacement), 80-3505 (1960 Replacement), and 80-3506 (1960 Replacement). Those sections provide as follows:

“FUNCTIONS OF BOARD. — The Board shall have general supervision of the public schools of the State; prepare and distribute plans and specifications for the construction and equipment of school buildings, and approve plans and expenditures of public school funds for all new school buildings; recommend courses of study for the public schools and teacher training institutions; . . .
STANDARDS FOR SCHOOL HOUSE CONSTRUCTION. — The State Board of Education shall establish reasonable minimum standards for school house construction and said standards may be revised from time to time as educational problems and methods of procedure develop and change. Such standards shall take into consideration the recommendations of the Arkansas Chapter of the American Institute of Architecture, the Fire Prevention Bureau, and the Arkansas State Board of Health.
SCHOOL BUILDING PLANS APPROVED BY STATE BOARD OF EDUCATION. — After the first day of July following the passage and approval of this Act, no new school house shall be built except in accordance with the plan finally approved by State Board of Education for all projects where the Board requires its approval thereof. A copy of approved plans and specifications of all new school houses or additions, shall be filed with and approved by the State Board of Education, before construction shall be commenced, where so required by the Board.”

It will be noted that these sections do not contain any language expressly tailing away all authority (in matters relating to building schools) granted municipal corporations to regulate construction. Section 19-2801, Ark. Stats. Anno. (1947) provides as follows:

“They (municipal corporations) shall have the power to regulate the erection, construction, reconstruction, alteration and repair of buildings; to make regulations for the purpose of guarding against accidents by fire; to require the use of fireproof or fire-resistant materials in the erection, construction, reconstruction, alteration or repairs of buildings; and to provide for the removal of any buildings or additions thereto erected contrary to such prohibition.”

Appellant did not see fit to attach a copy of the ordinance in question to his complaint, asserting that his position is simply that the city of Rogers is without authority to pass any ordinance relating to this type of construction; therefore, the invalidity of the ordinance must rest upon the allegation in his pleadings “that the laws of the State of Arkansas do not authorize cities of the State of Arkansas, to regulate construction of public school buildings, but rather, delegate such powers to the State Board of Education.” ’Where, in equity, exhibits are attached to the complaint, such exhibits control its averments, and may be looked to for the purpose of testing the sufficiency of the allegations of the complaint. Hendrickson v. Farmers’ Bank and Trust Co., 189 Ark. 423, 73 S. W. 2d 725. Here, however, we do not know the provisions of the ordinance, nor the manner in which the city seeks to regulate this construction.

The Planning Commission Act (Ark. Stats. Anno., 1959 Supplement), Section 19-2827, expressly provides that no public building shall be constructed unless the plan for such construction has been approved as conforming with the overall plan adopted by the City Planning Commission.

Section 71-1206 (Ark. Stats., 1957 Eeplacement), gives the State Board of Health general supervision of plumbing in buildings in this state, and provides:

“The construction, installation and maintenance of plumbing in connection with all buildings in this State, including buildings owned by the State or any political subdivision thereof, shall be safe, sanitary and such as to safeguard the public health.”

Section 71-1209 provides:

“Nothing in this Act [§§ 71-1205 — 71-1217] shall prohibit cities and towns from having full authority to provide full supervision and inspection of plumbing and plumbers by the enactment of codes, rules and regulations in such form as the council may determine appropriate. * * *”

It is apparent therefore, that cities, in certain instances, do have the authority to regulate some features relating to public buildings. As stated, the ordinance is not before us, and we are unwilling to make a sweeping finding that a municipality — in this case, the city of Eogers — cannot regulate in any manner, any phase, aspect, or feature relating to the construction of a public school building.

Affirmed.

Holt, J., dissents.

J. Seaborn Holt, Associate Justice,

dissenting.

We are concerned here with whether a city ordinance requiring a contractor to purchase a building permit is applicable to the school district and the school district’s contract to construct a high school building.

Appellant, Lavender, had been given a contract to construct a public school building in the City of Eogers. That city has attempted to force him to purchase a building permit costing $382.00. Lavender has complied and paid the permit fee demanded, but under strong protest, in order not to halt construction of the building. Article 14, § 3 of the Constitution of the State of Arkansas provides : ‘ ‘ The General Assembly shall provide by the general laws for the support of common schools by taxes. . . The General Assembly may .. . authorize school districts to levy by vote ... a tax... for the maintenance of schools, the erection and equipment of school buildings. . .” And § 80-113 Ark. Stats. (1947) contains these provisions: “The Board [State Board of Education] shall have general supervision of the public schools of the State; prepare and distribute plans and specifications for the construction and equipment of school buildings and approve plans and expenditures of public school funds for all new school buildings;... ” It seems clear to me, therefore, that public schools and public school buildings are arms of the state government, are of great public interest, and subject to direct control of the state legislature.

While it appears that we have no Arkansas case on the question presented, the case of Guy Hall v. The City of Taft, 47 Cal. 2d 177, 302 Pac. 2d 574, appears to be directly in point and holds contrary to the majority opinion here. In that case a contractor had been required to pay a permit fee of $300.00 and the Supreme Court of California held: “.That the Public school system is of state-wide supervision and concern and legislative enactments thereon control over attempted regulation by local government units. Constitutional provision giving any county, city, town or township power to enforce within its limits all local, police, sanitary and other regulations are not in conflict with general laws, does not confer upon local units of government power to regulate construction of public school buildings. The state has completely occupied the field of regulating public school building construction, and construction of such school buildings by school districts is not subject to the building regulations of a municipal corporation in which the building is constructed.

I think the decree should be reversed.

       Appellant also alleged that he had entered into an additional contract with the School District for the construction of an auditorium in conjunction with other facilities, hut had not obtained a permit.

       This is only mentioned as an example of city power to regulate a particular phase of public building construction. Apparently no zoning ordinance was violated since the city granted the permit.


author: J. Seaborn Holt, Associate Justice.

text:
    McClellan v. Young.
    5-2291
    339 S. W. 2d 624
    Opinion delivered November 7, 1960.

      O. E. Gates and Paul K. Roberts, for appellant.

      Max M. Smith and John W. Elrod, for appellee.
   J. Seaborn Holt, Associate Justice.

In this action appellant, Curtis L. McClellan, sought to compel the circuit clerk of Cleveland County, Arkansas to file a complaint at law. The evidence discloses that McClellan, who was a candidate for the office of representative of Cleveland County, had attempted to file a complaint, prepared by his attorney, in a suit to contest the results of the election in which he was unsuccessful in securing the Democratic nomination. The deputy circuit clerk, in charge at the time, refused to file the complaint. It is undisputed that the appellant did not tender any filing fees at that time. Thereupon McClellan sought the circuit clerk, Henry Young, in an effort to have the complaint filed. Young informed the appellant that he would file the complaint if a $500.00 bond to secure the cost of the contest were filed. No bond was offered or filed.

In the opinion and judgment of the trial court we find this language: “* * # the Court doth find: That Petitioner attempted to file with Henry Young, Clerk, his petition to contest the nomination of Raymond C. Mays in the Primary Election of August 9,1960, on the 29th day of August, 1960; that the Clerk refused to file the same for the reason that no fees for filing and issuing process were paid or tendered, although demand was made for same; * * * The Court finds that said petition for writ of mandamus should he denied for the following reasons: 1. The Clerk was not legally bound to file the complaint until and unless the fee for filing same and issuing summons was tendered or paid. * * *”

This appeal followed and for reversal appellant says: “The Court erred in failing to issue its Writ of Mandamus requiring appellee to file said Complaint at Law and issue summons thereon.”

In the circumstances here we hold that the judgment of the trial court was correct. Arkansas Statutes (1947) § 27-302 provides: “Payment of fees prerequisite to entry of action or issuance of writ. — No action shall be entered upon the docket of any court nor any original mesne or final process issued therein, except in criminal cases and cases where the State is plaintiff, until the fees for entering the case upon the docket and for issuing such writ, and the taxes thereon, if any, be paid, or bond and security, to the approval of the clerk, given therefor; and no clerk shall be liable to an action for refusing to docket a cause or issue any writ, unless the fee and tax thereon be first tendered or secured as herein provided.” It appears undisputed here that the fees required by this section were not tendered, paid, or secured to appellee by appellant in spite of the demands made by the appellee to appellant.

Therefore, appellant’s petition for mandamus must be and is denied. Accordingly, the judgment is affirmed.


author: Ed. F. McFaddin, Associate Justice. Paul Ward, Associate Justice,

text:
    Trotter v. Kemp.
    5-2229
    340 S. W. 2d 274
    Opinion delivered November 7, 1960.
    [Rehearing denied December 5, 1960.]

      Chas. B. Thweatt, for appellant.

      John L. Sullivan, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a claim against an estate for personal services rendered the deceased. The claimant is the appellant, M. J. Trotter; and the appellee, Mrs. Helen K. Kemp, is the executrix of the estate of Mrs. Josephine Page, who departed this life testate on May 17, 1958 at an age in excess of 90 years. Appellant Trotter presented his claim against the estate for $11,850.00. The Probate Court allowed the claim in the amount of $120; and Trotter has appealed.

Entirely disregarding Trotter’s testimony, the facts clearly establish that he lived in the home of Mrs. Page and cared for her for the last three years of her life; that he was not related to her in any way; and that the decedent recognized her obligation to the appellant and contemplated compensating him in addition to what he had been paid. He is entitled to some compensation. See Harris v. Whitworth, Admr., 213 Ark. 480, 211 S. W. 2d 101.

Except for Mr. Wills’ testimony (subsequently mentioned in this paragraph), there is no testimony as to any contractual amount for Trotter’s services, but be could recover on a quantum meruit basis. See Nissen v. Flournoy, 160 Ark. 311, 254 S. W. 540; and Suits v. Chumley, 218 Ark. 488, 236 S. W. 2d 1001. Trotter failed to show the quantum meruit value of his services. Mr. Wills testified, when called by the executrix, that Trotter told Wills about six months before Mrs. Page’s death that he (Trotter) . . was staying there every night he was in town and that Mrs. Josie Page was paying him $2.00 a night and his evening and morning meal.” Since this is the only value stated, Trotter is limited to the figure of $2.00 per night.

Even though Trotter had cared for Mrs. Page for many years it must, of course, be conceded that Trotter could make no claim for services in excess of three years prior to Mrs. Page’s death, since there was no written contract. § 37-206, Ark. Stats. So the maximum amount that the evidence would support is a total of 1095 nights (3 years) at $2.00 a night, which would be $2190. But Mrs. Page was in the hospital for seven nights immediately preceding her death, and that would leave only 1088 nights, or a total of $2176 as the maximum amount that could be allowed Trotter in this case. The executrix introduced checks issued to Trotter by Mrs. Page dated within three years of her death and totalling $809. These checks would constitute evidence of payment to that amount in the absence of any proof to the contrary, and there was none. Deducting the $789 from the $2176 would leave $1367 as the maximum amount that Trotter can recover under the evidence in this case.

The Probate Court allowed Trotter only $120. This was on the basis that, calculating from some date in October 1957, and assuming that Trotter was paid in full up to that time, there would only be a balance of 60 nights for which he was not paid. But we try these probate cases de novo on the record (see Suits v. Chumley, 218 Ark. 488, 236 S. W. 2d 1001); and we find nothing in the record to substantiate the assumption that Trotter was paid-in full to any date in October 1957, or to any other date. Of course, Trotter insists that his services were worth far more than $2.00 a night; but the answer is, he did not prove his services. The executrix contends that Trotter has been paid; but the answer is that payment was not established. The claim of Trotter should have been allowed for $1387, according to the calculation heretofore made.

The judgment is reversed and the cause is remanded, with directions to enter a judgment as herein stated.

George Rose Smith, "Ward and Robinson, JJ., dissent.

Paul Ward, Associate Justice,

dissenting.

I am dissenting to the majority opinion because I believe the evidence justifies the conclusion that appellant had been paid for his services except, of course, for the amount allowed by the trial court. My reasons are hereafter set forth.

Mrs. Page died May 17, 1958, at the age of 90. The majority would pay appellant at the rate of $2.00 per day for a period of three years preceding Mrs. Page’s death, with the exceptions noted in the opinion.

It is undisputed that from August, 1957, Mrs. Page signed and delivered to appellant 62 separate checks for a total of $509 — the last check being dated March 11, 1958. It was undisputed that these checks were written out by appellant for Mrs. Page to sign.

It is hard to understand how anyone can reasonably believe that either Mrs. Page or appellant knew or even thought that Mrs. Page was* during that time, indebted to appellant for past services in the amount of approximately $1500. If appellant did feel that Mrs. Page owed him such a large amount it seems only reasonable that he should have done or said something about it, and I tbrnk it was his duty to have done so. I doubt if he would have been so bold as to have demanded $1500 from Mrs. Page while she was still alive. Now that she is dead he demanded, in this litigation, a sum in excess of $10,000. These were circumstances which the Chancellor had a right to consider in arriving at his decision.

The Chancellor had all of the evidence as it was presented to him in open court and, in view of the facts and circumstances above set forth, I am most unwilling to disturb the Chancellor’s findings.

George Rose Smith and Robinson, JJ., join in this dissent.


author: Ed. F. McFaddin, Associate Justice.

text:
    Royster v. Royster.
    5-2251
    339 S. W. 2d 607
    Opinion delivered November 7, 1960.
   Ed. F. McFaddin, Associate Justice.

The transcript in this case was filed in this Court on August 4, 1960, and appellant seasonably filed his abstract and brief. Now, in advance of submission of the case on its merits, the appellee has filed a motion asking us to dismiss the appeal because, “The appellant has failed to file an abstract or abridgment of the record in such manner as to give the Court a clear understanding of all the questions presented to the Court for decision.” There seems to be some general misunderstanding as to the effect of the present Rule 9 since we frequently have motions like the present one. Therefore, we again explain the rule, just as was done in Milum v. Clark, 225 Ark. 1040, 287 S. W. 2d 460.

For many years prior to January 10, 1954 we had a Rule 9 which we call “the old rule,” and which read in part:

“In all civil cases the appellant shall . . . file abstract and brief. . . . The abstract or abridgment of the transcript shall set forth the material parts of the pleadings, proceedings, facts, and documents upon which appellant relies, together with other matters from the record as are necessary for an understanding of all questions presented to this Court for decision. . .

Likewise, prior to January 10, 1954, we had a Rule 12 which we call “the old rule,” and which read in part:

“If the abstract and brief have not been filed by the appellant in accordance with Rules 9 and 10 when the case is called for trial the appellee may have the appeal dismissed or the judgment affirmed as of course.”

On January 10, 1954 the foregoing rules were materially and radically changed. We now quote the germane portion of the new Rule 9(d) which reads:

“The appellant’s abstract or abridgment of the record should consist of an impartial condensation, without comment or emphasis, of only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to this court for decision. . . .”

And the present Rule 9(e) reads in part:

“Motions to dismiss the appeal for insufficiency of the appellant’s abstract will not be recognized. If the appellee considers the appellant’s abstract to be defective he may, at his option, submit with his brief a supplemental abstract. . . .”

In Milum v. Clark, 225 Ark. 1040, 287 S. W. 2d 460 (decided February 27, 1956), we commented on the effect of the changes in these rules; and of the new rule 9 we said:

“Since the new rule has not previously been discussed in an opinion, an explanatory comment may be of assistance to the bar as a whole. In its old form Rule 9 required the appellant to submit a fair abstract of the record, under penalty of dismissal of the appeal if the abstract were found to be insufficient. The penalty was so severe that it caused lawyers to resolve all doubts in favor of making a complete abstract of everything in the record, whether relevant to the issues on appeal or not. The result was that nearly every abstract was unnecessarily long, to the detriment alike of the lawyer who labored to prepare it, of the client who paid for its printing, and of the judges who were required to study much irrelevant matter.
“It was to remedy this situation that Rule 9 was revised in 1954. The present rule requires that the abstract consist of ‘an impartial condensation, without comment or emphasis, of only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to this court for decision.’ The penalty of dismissal for insufficiency of the appellant’s abstract has been eliminated, the rule now permitting the appellee at his option to supplement an abstract thought deficient. Compensation for the cost of the supplement may be awarded by the court in its discretion.
“It is the purpose of the revised rule to encourage the submission of abstracts that are confined to those matters pertinent to the points involved in appeal. . . . ”

Since the adoption of the new rules, as of January 10, 1954, we have a number of cases in which we have affirmed the Lower Court when the appeal was reached in this Court on the merits of the case; but we find no case decided since January 10, 1954 in which we have entertained a motion to dismiss an appeal because of the failure of the appellant to abstract. It is only when the case is reached on the merits that the matter of the abstract arises.

The net result of the present Buie 9 is this: In advance of the hearing on the merits we do not dismiss an appeal for failure of the appellant to comply with Buie 9 as to abstracting. Bather, we permit the case to be submitted in this Court on its merits. If appellee considers appellant’s abstract to be deficient, appellee may supply the deficiency in whole or in part, or may leave the deficiency unsupplied. If this Court cannot adequately ascertain the facts in the situation from the appellant’s abstract, and if the appellant’s abstract has not been supplemented by the appellee to supply the deficiency, then we affirm the case because the appellant has failed to show error to have been committed by the Trial Court. In advance of the submission on the merits we do not consider any motion to dismiss the appeal because of appellant’s failure to abstract. Consideration of such a motion would require us to ferret through the transcript, and compare it with the appellant’s abstract, in order to reach a conclusion. To avoid such labor — and for other reasons — the present Buies 9(d) and 9(e) were promulgated.

In the present case the motion to dismiss the appeal is denied; and the case remains on the docket for submission on the merits when reached in the regular call.

       After a paragraph in the motion undertaking to demonstrate the deficiency of the abstract filed by the appellant, the appellee concludes: “Appellee submits that under the decisions in the cases of Speed v. Mays, 226 Ark. 213, Griffin v. Mo. P. Rd. Co., 227 Ark. 312, Smock v. Corpier, 226 Ark. 701, and Ellington v. Remmel, 226 Ark. 569, this appeal should be dismissed or affirmed. Wherefore, appellee prays that the appeal herein be dismissed or affirmed for noncompliance with Rule 9 of this Court.”

       The procedural rules of this Court, revised to January 10, 1954, may be found on page 961 et seq. of Volume 221 of the Arkansas Reports. Subsequent revisions to December 10, 1956 may be found on page 1043 et seq. of Volume 226 of the Arkansas Reports. There have been no changes in the rules since December 10, 1956 except in Rule 7 and Rule 11, each of which now requires the filing of seventeen printed copies of the abstract and briefs instead of ten copies, as theretofore. Printed copies of the procedural rules in pamphlet form may be obtained from the Clerk of this Court by any attorney.

       Here are such cases: Speed v. Mays, 226 Ark. 213, 288 S. W. 2d 953; Ellington v. Remmel, 226 Ark. 569, 293 S. W. 2d 452; Smock v. Corpier, 226 Ark. 701, 292 S. W. 2d 260; Porter v. Time Stores, 227 Ark. 286, 298 S. W. 2d 51; Griffin v. Mo. P. Rd. Co., 227 Ark. 312, 298 S. W. 2d 55; and Farmers Union Co. v. Watt, 229 Ark. 622, 317 S. W. 2d 285.


author: George Rose Smith, J. Paul Ward, Associate Justice,

text:
    Hinton v. Bryant.
    5-2235
    339 S. W. 2d 621
    Opinion delivered November 7, 1960.

      Duty & Duty, for appellant.

      Davis é Mills, for appellees.
   George Rose Smith, J.

This is an action by the appellees, who purchased a ten-acre tract of land from the appellant, to recover the value of a set of platform scales that were on the land at the time of the conveyance. The appellees insist that the scales were fixtures passing with the land, while the appellant contends that they were personal property that might later be removed by the grantor. The trial court, sitting without a jury, found the scales to have been part of the realty and therefore awarded the appellees a judgment for $500 as damages for the appellant’s wrongful removal of the property.

The court was right in holding the device to be part of the land. The scales were used for the weighing of trucks and consisted principally of a platform thirty-four feet long and ten feet wide. This platform was suspended over an excavation of commensurate size, thirty-eight inches deep and lined with concrete. There was also a scale house containing the indicating mechanism. The removal of the platform left the land burdened with the large, useless, concrete-lined excavation. In Waldo Fertilizer Works v. Dickens, 206 Ark. 747, 177 S. W. 2d 398, upon substantially identical facts we held that the scales were fixtures that passed with a conveyance of the land. That case is controlling here.

The appellant is correct, however, in his contention that the circuit court erred in permitting the introduction of incompetent evidence of the value of the scales. Over objection the court allowed Bryant to testify that two other men, Kendrick and Tyson, had tried to buy the scales from him, each offering $500. The court must have relied upon this testimony, as there is very little other proof of value, and indeed no other reference to the exact figure adopted by the court.

Isolated offers for the purchase of property are not ordinarily competent evidence of its value. Jonesboro, L. C. & E. R.R. Co. v. Ashabranner, 117 Ark. 317, 174 S. W. 548; Golenternek v. Kurth, 213 Ark. 643, 212 S. W. 2d 14, 3 A. L. R. 2d 593. Orgel, in discussing the rule, points out that such offers are mere hearsay declarations of third parties, not under oath and not subject to cross-examination. Orgel, Valuation Under Eminent Domain (2d Ed.), § 148.

The appellees suggest that their proof did not involve “isolated” offers, since there was evidence of two offers rather than only one. This fact does not meet the objection. As Wigmore indicates, a merchant or a stockbroker who repeatedly receives and either accepts or rejects offers in the regular course of business may thereby arrive at an admissible opinion of value. Wigmore, Evidence (3d Ed.), § 719. The testimony of such a witness represents an informed independent judgment and not the mere repetition of hearsay. In the case at bar, however, Bryant’s testimony falls in the latter category and should have been excluded.

The appellant also complains that the appellees failed to show that he is legally responsible for the removal of the scales, which were taken away by third persons not parties to this suit. We do not' find it necessary to reach this question. Owing to the error indicated the case must be retried, and upon a new trial the plaintiffs may offer additional evidence tending to fix responsibility upon the appellant. When reversible error appears in a law case it is our practice to remand the cause for a new trial unless it appears that the ease has been fully developed and should be dismissed. Fidelity Mut. Life Ins. Co. v. Beck, 84 Ark. 57, 104 S. W. 533, 1102; Ark. Nat. Gas Co. v. Gallagher, 111 Ark. 247, 163 S. W. 791. This cause will therefore be remanded for a new trial.

Reversed.

Ward, J., dissents.

Paul Ward, Associate Justice,

dissenting.

It appears to me that the majority opinion decides this case on an issue foreign to the one on which the case was tried and decided by the trial court.

It is true that the complaint is somewhat indefinite as to the exact theory on which appellees sought relief, but among other things, the complaint fairly states an action for damages to the land because of the removal of the scales from the scale house. Among other things, it is stated in the complaint that appellant gave appellees a deed containing a convenant of general warranty and that appellant or his privies removed the scales from the land. In plaintiffs’ prayer they ask for “the amount of $500 for permanent damages to the plaintiffs’ 10 acre tract of land. ’ ’

There are several other things which indicate that the case was tried on this theory by the court sitting as a jury. ONE: The judgment of the court, found at page 17 of the record states: “That the plaintiff do have and recover against the defendant, W. L. Hinton, judgment in the sum of $500 as damages to the premises for the removal of the platform scales.” (Emphasis supplied.)

TWO: The record contains three pictures showing the scale house with the scales removed. These pictures would have no meaning if the plaintiffs were suing merely for the value of the scales. They do have meaning on the theory that the plaintiffs were suing for damages, either to the 10 acre tract or the scale house.

THREE: Several remarks by the court and by the attorneys indicate that this was a suit for damages to the property. At one time the attorney for appellant stated: “He’s suing for damages and he’s trying to set the value of this property by what the prices were on some scales that were quoted to him. ’ ’ Following this the court stated to appellees ’ attorney: “... you can state the value of the scales before and after the alleged removal. And what the scales in toto, their reasonable value before and after.” Appellant’s attorney replied: ‘ ‘ That is right. ’ ’

The only remaining question then is did appellees prove damages to the extent of the judgment — $500? It is clear to my mind, from the proceedings hereafter set out, that they did.

Q. “What is the value of the scale house, or what was the value of the scale house with the scales affixed thereto, in your opinion?” (The question was directed to Mr. Bryant.)
THE COURT: “Immediately before the alleged taking and immediately after, those are the essential elements.”
MR. DUTY: “Object to the question. He hasn’t qualified as an expert.”
THE COURT: “He can — as owner of the property, he can state the value. It can be rebutted by experts. . .”
A. “I would say $2,000.00.’’
Q. “And what, in your opinion, is the value of the scale house without the scale ? ’ ’
A. “It’s more a liability than it is an asset at the present time.”

In my opinion the above testimony was admissible as competent evidence on tbe theory of damages. It was not rebutted or denied, and it sustains the judgment of the court in the amount of $500.

Under this theory of the case the testimony regarding the offer by two people to pay $500 for the scale was inadmissible but it merely constituted harmless error on the part of the court. I would affirm the case.


author: Paul Ward, Associate Justice.

text:
    Hammond v. State.
    4991
    340 S. W. 2d 280
    Opinion delivered November 7, 1960.
    [Rehearing denied December 5, 1960.]

      Shelby G. Ferguson and Wm. C. Jenkins, for appellant.

      Bruce Bennett, Atty. General, by Bussell J. Wools, Asst. Atty. General, for appellee.
   Paul Ward, Associate Justice.

Appellant was charged with stealing a chain saw valued at more than $35. He was convicted on circumstantial evidence and sentenced to one year in the penitentiary. On appeal appellant insisted that the circumstantial evidence was insufficient to sustain the verdict and judgment.

Mack Henry, the owner of the chain saw, testified in substance to the following: I live three miles south of Salem, and I am the owner of a chain saw which was taken from my property on July 5, 1959, (Sunday) around 5 p.m.; later the saw was brought back to me by the deputy sheriff; I can identify the saw by the chain in which one screw was missing; the saw cost $239 and the market value would be about $125. Gwen Logan in substance stated: I passed by Mr. Henry’s place on the 5th day of July, 1959, about 4:30 or 5 p.m., there was a dark blue or black 1949 or 1950 Ford sedan car with two men standing by it — the car had a cracked windshield. Kathleen Logan in substance stated: I was coming back from church on 5th of July, 1959, and when I passed the Henry place I saw a Ford car parked, two men were standing beside the car, one of them dressed in khaki, one of the men was the appellant Bynum Hammond. Cornell Wayne Cheek in substance stated: I have known appellant for several years. On July 5, 1959, I saw him driving a black 1949 or 1950 Ford; the windshield was out; when I saw appellant I was on the road to Mack Henry’s place and it was late in the afternoon. David Jones, a state policeman, in substance stated: I went to appellant’s place on the 19th of July and asked him if he had seen the property that had been reported stolen; he went to the smokehouse and brought out a saw and told me he had bought the saw in West Plains; that he did not know who he had bought it from and did not have a bill of sale; there was a 1949 or 1950 Ford sedan setting in front of his house with a cracked windshield, and the right-hand side of the windshield was -broken out. He stated that it was his car. Elvie Lau, a deputy sheriff, stated that he accompanied the state trooper to appellant’s home where he saw the above described Ford parked in front of his house with half of the windshield broken out; that when they got the saw, appellant stated that he had bought it in West Plains and that he had borrowed $50 from the bank to pay for it. Bill Young stated that he had been in the chain saw business about three years. After examining the saw, which was supposed to have been stolen and which was an exhibit in the trial of the case, stated that the market value would be somewhere from $40 to $60.

We find no merit in appellant’s contention that there was no evidence to prove the identity of the saw or its fair market value. It was, of course, necessary to show that the market value of the saw was more than $35, otherwise, a conviction under Ark. Stats. § 41-3907, could not be sustained. The testimony of the owner of the saw and the testimony of Young was, we think, substantial evidence from which the jury was justified in finding that the saw had a market value of at least $40. Likewise, the identification of the saw made by the owner supplied substantial evidence to sustain the jury’s verdict. In the case of Burrell v. State, 203 Ark. 1124, 160 S. W. 2d 218, the court among other things said, “. . . it is also a well-settled rule that the evidence admitted at the trial will, on appeal, be viewed in the light most favorable to the appellee, and if there is any substantial evidence to support the verdict of the jury it will be sustained.”

Appellant’s strongest contention is that the circumstantial evidence in this case is not sufficient to support the verdict of guilty. In support of this argument appellant relies on what this court said with reference to circumstantial evidence in the cases of Reed v. State, 97 Ark. 156, 133 S. W. 604, Turner v. Walnut Ridge, 186 Ark. 899, 56 S. W. 2d 759. In the Reed case the court, after reviewing the lengthy testimony, had this to say: “There may he in this testimony some evidence of suspicion against defendants, but at the most it is a circumstance of bare suspicion. But mere circumstances of suspicion are not sufficient upon which to base the conviction for a crime, which must be established by substantial evidence to the exclusion of a reasonable doubt.” In the Turner case the court cited the Reed case with approval and reáched the same result. In doing so the court made this statement: “The testimony recited raises a serious suspicion that appellant had intoxicating liquor at his home for the purpose of sale; but convictions cannot be sustained upon suspicion merely. There must be testimony which, when given its highest probative value, proves that the accused had committed the offense charged.”

The court has, however, on many occasions sustained convictions on circumstantial evidence; see: Lackey v. State, 67 Ark. 416, 55 S. W. 213; Bartlett v. State, 140 Ark. 553, 216 S. W. 33; Scott v. State, 180 Ark. 408, 21 S. W. 2d 186, Huffman v. State, 222 Ark. 319, 259 S. W. 2d 509; Miller v. City of Helena, 224 Ark. 1016, 277 S. W. 2d 841.

In the Lackey case, supra, the court (in reviewing circumstantial evidence) said: “The doctrine of reasonable doubt applies to the general issue of guilty or not guilty, tut it does not apply to each item of testimony or to each circumstance tending to show the guilt of the defendant.” (Emphasis supplied.) In the Huffman case, supra, the court approved this instruction: “You are instructed that although it is competent to convict on circumstantial evidence before you would be authorized to convict on such evidence, the facts and circumstances in evidence must point with reasonable certainty to the defendant’s guilt and they must be consistent with each other and consistent with the defendant’s guilt to the exclusion of every reasonable hypothesis of his innocence.” In the Scott case, supra, we find this statement: “The defendant was convicted on circumstantial evidence, but there is no difference in the effect between circumstantial evidence and direct evidence. In either case it is a question for the jury to determine, and, if the jury believes from the circumstances introduced in evidence, beyond a reasonable doubt, that the defendant is guilty, it is the duty of the jury to find him guilty just as it would be if the evidence was direct.” In the Miller case, supra, the court quoted with approval: “There is no greater degree of certainty in proof required where the evidence is circumstantial than where it is direct, for in either case the jury must be convinced of the guilt of the defendant beyond a reasonable doubt.”

In the case under consideration the evidence against appellant amounts to more than a suspicion of guilt. It amounts, we think, to substantial evidence. One strong factor, not heretofore mentioned, is the fact that the missing saw was found in appellant’s possession and no satisfactory explanation, consistent with innocence, was given by him. At least the jury evidently did not believe the explanation given, as it had a right to do.

In the case of Duty v. State, 212 Ark. 890, 208 S. W. 2d 162, where the appellant was charged with and convicted of grand larceny the court said:

“Without further recitation of the testimony it may be said that it was clearly shown that appellant was in possession of property recently stolen and the jury evidently did not accept appellant’s explanation of his possession. This testimony alone would suffice to sustain the larceny charge. See Mays v. State, 163 Ark. 232, 259 S. W. 398, and cases there cited.” (Emphasis supplied.)

It is our conclusion that there was substantial evidence to support the jury’s verdict of guilty, and the judgment of the trial court is therefore affirmed.

Affirmed.


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

text:
    Froman and Sanders v. State.
    4989
    339 S. W. 2d 601
    Opinion delivered November 7, 1960.

      Nance $ Nance, for appellant.

      Bruce Bennett, Atty. General, by Ancil M. Reed, Asst. Atty. General, for appellee.
   Sam Robinson, Associate Justice.

Appellants were convicted of the crime of robbery. The only witness that connects the appellants with the offense is Mary Salmon. In these circumstances if she was an accomplice, the conviction cannot stand. The State proved that on the night of February 12, 1958, R. J. Wilson was robbed of about $195 in a liquor store at West Memphis. There is no evidence whatever which tends to show that appellants committed the offense except the testimony of Mary Salmon. She testified that she had known the defendants since 1956; that Marvin Sanders was her lover; that on the night of February 12th she and the defendants drove to West Memphis; that she knew the defendants had no money when they went there; that Marvin Sanders took a pistol out of the glove compartment of the automobile and put it under his belt; that the two men then got out of the car but that she stayed in the car; that the men were gone a few minutes and returned; they had one-half pint of liquor and she saw one of them stuffing money in his pocket; she knew at that time that they robbed the liquor store; she asked them if they had hurt the man in the store. She testified that she was charged with the robbery involved here but later the case was nolle prossed. She stated that she still loves Sanders; that he is the father of her child; that her husband is in the penitentiary; that she lived with another man named Chuck Tutor as his wife, at a time when she was married to her present husband. She testified that after the robbery was committed she and the two men went to her apartment in Memphis and there the men divided the money; they counted it out on a table in her presence. She denied that she got any part of it but stated that Froman stayed in her apartment until about 2 or 3 o’clock in the morning and that Sanders stayed there until the next day. She stated that she told Sanders’ stepmother about the crime having been committed, but told no one else about it for more than a year, when she told the Memphis police. The evidence shows conclusively that as a matter of law the prosecuting witness, Mary Salmon, is an accomplice.

Ark. Stats. § 41-120 provides: “An accessory after the fact, is a person who after a full knowledge that a crime has been committed, conceals it from the magistrate, or harbors and protects the person charged with or found guilty of the crime.” [Emphasis ours.] According to the undisputed testimony, Mary Salmon knew at the time that the men committed the robbery. She testified:

“Q. You knew they robbed something and you knew they robbed that liquor store, didn’t you?
A. Yes, sir.
Q. You came back to Memphis and you counted the money didn’t you? How was this money, currency or silver?
A. It was in bills and silver.”

Immediately following the robbery she harbored the men in her apartment. Undoubtedly she was an accessory after the fact. An accessory after the fact is an accomplice. In Polk v. State, 36 Ark. 117, the Court said: “An ‘accomplice’, in the full and generally accepted legal signification of the word, is one who, in any manner, participates in the criminality of an act, whether he is considered, in strict legal propriety, as a principal in the first or second degree, or merely as an accessory before or after the fact.” In Stevens v. State, 111 Ark. 299, 163 S. W. 778, the Court quoted with approval from State v. Jones, 91 Ark. 5, 120 S. W. 154, as follows: “ ‘. . . where a felony has been committed, the felon stands charged with the crime, and it is the duty of all persons, who know or have reason to believe that he is guilty of a felony to arrest him. One who, with a full knowledge that the crime has been committed, harbors and protects the felon, is guilty as accessory and may be punished as such, whether the principal offender be arrested or not. Any other view of the statute would permit a person to go unpunished who has been guilty of the most flagrant act of harboring and protecting a felon before a warrant of arrest could be procured, or an indictment could be returned.’ ” The Court also said in the Stevens case: “There is a conflict of authority as to whether an accessory after the fact is an accomplice, hut the decisions of this court are to the effect that he is.” On rehearing in the Jones case, Judge McCulloch said: “Under the statute now under consideration, it is unimportant how the knowledge is received by the alleged accessory; it is sufficient to constitute the offense if he knows, at the time he harbors and protects the felon, that the latter has committed the felony named in the indictment.”

In attempting to explain why she waited for more than a year after the alleged crime was committed before giving the information to the police, the witness, Mary Salmon, stated that she was scared, but she said she was not afraid of Sanders, and she does not indicate that she was afraid of Froman, and she stated that she was not afraid of the police. In fact, she gives no explanation of her asserted fear. In Wharton’s Criminal Evidence, 12th Ed., Vol. 2, p. 238, it is said: “Nor is one an accomplice who through fear of immediate danger to life or member conceals the commission of the crime. But ordinarily, ‘a person who aids and assists in the commission of a crime or in measures taken to conceal it and protect the criminal, is not relieved from criminality as an accomplice on account of fear excited by threats or menaces, unless the danger be to life or member, nor unless that danger be present and immediate as above announced. . . .” [Emphasis ours.]

In Henderson v. State, 174 Ark. 835, 297 S. W. 836, the Court said: ‘ ‘ The general test to determine whether a witness is or is not an accomplice is, could he himself have been indicted for the offense, either as a principal or accessory?” The witness, Mary Salmon, was indicted, although later the indictment was nolle prossed. But certainly, according to her own testimony in this case, her participation in the offense was sufficient to sustain a conviction on such an indictment if a jury had returned a verdict of guilty.

In Havens v. State, 217 Ark. 153, 228 S. W. 2d 1003, the Court said: “We have approved the following test generally applied to determine whether one is an accomplice: ‘Conld the person charged (as an accomplice) be convicted as a principal, or an accessory before the fact, or an aider and abetter upon the evidence? If a judgment of conviction could be sustained, then the person may be said to be an accomplice. . . .5 ”

In Underhill’s Criminal Evidence, 5th Ed., Vol. 1, p. 335, it is said: “The burden is on the defendant to show that the witness for the state is an accomplice. This is usually determined by the court as a question of law. But if the evidence is conflicting as to the participation of the witness in the commission of the crime, the matter should be left to the jury under proper instructions as to intent and participation. ’ ’ Here there is no conflict in the evidence as to Mary Salmon’s participation in the crime. She waited in the automobile near the scene of the crime while the robbery was perpetrated; she knew the crime was committed; she permitted the two men to go to her apartment and divide the money obtained in the robbery; she harbored one of the men until 2 or 3 o’clock in the morning and the other until the next day.

It being established that she is an accomplice, the question that follows is whether there is any evidence corroborating her testimony connecting the appellants with the crime. Ark. Stats. § 43-2116 provides: “A conviction can not be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof. . . .”

It will be noticed that the corroborating evidence must tend to connect the defendant with the crime. Corroborating evidence that the crime was committed and the details thereof are not sufficient. The corroborating evidence must be independent of evidence given by the accomplice. In Underhill’s Criminal Evidence, 5th Ed., Vol. 1, p. 401, it is stated: “The test of sufficiency of corroboration has been stated to be whether, if the testimony of the accomplice is eliminated from the case, the testimony of the other witnesses be sufficient to establish the commission of the offense and the connection of the accused therewith.”

True, Mrs. Salmon knew the details of the crime; it was shown that the robbers tore the phone from the wall. She testified that she heard the men say they tore the phone loose. Mr. Wilson, the victim of the robbery, testified as to the denomination of the money taken in the robbery, and Mrs. Salmon testified that the money the robbers divided in her apartment was of similar denomination. But when the evidence is analyzed it is perfectly clear that if Mary Salmon’s testimony were eliminated, there would not remain a scintilla of evidence which tends to connect the defendants with the crime.

The jury returned separate verdicts finding each appellant guilty of robbery, but it is stated in each verdict that the jury are unable to agree on the punishment, leaving it to the court to fix the punishment, which the court did. Appellants contend that the statute authorizing the court to fix the punishment in certain cases is unconstitutional. Ark. Stats. § 43-2306 provides: “When a jury find a verdict of guilty, and fail to agree on the punishment to be inflicted, or do not declare such punishment in their verdict, or if they assess a punishment not authorized by law, and in all cases of a judgment on confession, the court shall assess and declare the punishment, and render judgment accordingly.”

Article 2, § 7 of the Constitution of Arkansas provides: “The right of trial by jury shall remain inviolate, and shall extend to all cases at law, . . .” Article 2, § 8 provides: “. . . but if, in any criminal prosecution, the jury be divided in opinion, the court before which the trial shall be had may, in its discretion, discharge the jury, and commit or bail the accused for trial at the same or the next term of said court; . . .” Article 2, § 10 provides: “In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by impartial jury. . . .” Article 2, § 21 provides: “No person shall be taken or imprisoned, or disseized of his estate, freehold, liberties or privileges; or outlawed, or in any manner destroyed or deprived of his life, liberty or property, except by the judgment of his peers or the law of the land; . . .”

The great weight of authority is that statutes similar to ours permitting the court to fix the punishment under certain circumstances are not unconstitutional. We agree with that view. State v. Hamey, 168 Mo. 167, 67 S. W. 620; Woods v. State, 130 Tenn. 100, 169 S. W. 558, L.R.A. 1915F, 531; Ward v. Hurst, 300 Ky. 464, 189 S. W. 2d 594; Lee v. Buchanan, Ky., 264 S. W. 2d 661. See also 31 Am. Jur. 575; 50 C. J. S. 784.

Since the accomplice’s testimony connecting the defendants with the crime is not corroborated, the judgment must be reversed. It is so ordered.

McFaddin, J., dissents.

George Rose Smith and Ward, JJ., concur.

George Rose Smith, J.,

concurring. I cannot join in the majority’s conclusion that Mary Salmon was shown to be an accomplice as a matter of law. This witness did not admit her complicity in the crime, as by turning state’s evidence. On the witness stand she sought to maintain her innocence and to convince the jury that it was not until the money was being counted in her home that she was certain a crime had been committed. She explained her failure to report the offense by saying she was afraid to go to the police. Although her avowals of innocence were greatly weakened upon cross examination I cannot say that the jury were bound to disbelieve her. Hence I think we should follow the rule adhered to in Jackson v. State, 193 Ark. 776, 102 S. W. 2d 546: “ In any view of the situation, appellant was entitled to have the question as to whether she was an accomplice submitted to the jury, as it was one of mixed law and fact,... unless the testimony or subsequent events show conclusively she was an accomplice.” In my opinion the court below properly submitted this issue to the jury.

I agree, however, that the case should be reversed and remanded for a new trial, as the court erred in giving its instruction No. 10. By that instruction the jury were permitted to convict the accused even though Mary Salmon was found to be an accomplice. This instruction should not have been given, for as the majority correctly point out there is no evidence whatever, apart from Mary Salmon’s testimony, that connects these appellants with the crime. Hence the jury should not have been given an opportunity to base a conviction upon nonexistent proof.

Ward, J., joins in this opinion.

Ed. F. McFaddin, Associate Justice,

dissenting.

Since several questions are presented in this case, I think it may be worthwhile for future reference that I state the reasons for my dissent. I think the judgment should be affirmed for these reasons:

(1) Mary Salmon was not an accomplice as a matter of law. It was a question of fact for the jury to decide as to whether or not she was an accomplice. If the jury should find that Mary Salmon was not an accomplice, then her testimony would not have to be corroborated.

(2) If the jury should conclude that Mary Salmon was an accomplice, then her testimony would have to be corroborated; and I think there was ample evidence of corroboration to support the jury verdict:

(a) Mary Salmon testified that Marvin Sanders took a pistol from the glove compartment of his car as he started toward the liquor store. B. J. Wilson testified that the man who robbed him stuck a pistol in his back. Wilson described the pistol.

(b) Mary Salmon testified that when Froman returned to the car, she asked where Sanders was, and that Froman went back and was gone a short time and Sanders returned with him. Wilson testified that one of the robbers stopped long enough after committing the robbery to select a bottle of whiskey and that the other robber came back for him.

(c) Mary Salmon testified that after Froman and Sanders had re-entered the car, Sanders stated that he had torn the telephone off the wall in order to prevent the Wilsons from calling the police. It was testified by Wilson and other witnesses that the telephone was torn from the wall.

(d) Mary Salmon testified that Froman and Sanders had something over $190 in currency, half dollars, and quarters, when they counted the money in her presence. Wilson testified that the robbers took $196 in currency, half dollars, and quarters.

The corroboration did not merely go to show that a crime was committed; it went to show that Froman and Sanders had committed the particular robbery here involved ; and I think this evidence corroborates the testimony of Mary Salmon even if the jury had found that she was an accomplice.

In the concurring opinion in this case it is stated that there was error in Instruction No. 10 as given by the Court. I find no error.

Therefore, I conclude that the judgment of conviction should he affirmed.

       So that there can be no misunderstanding about the Instruction No. 10, I copy Instructions 9 and 10 as given by the Court; and I find no error in them:
      COURT’S INSTRUCTION NO. 9.
      “Therefore, if you find from the evidence in this case under the instructions herein given that Mary Salmon was an accomplice to the crime, then you will consider the following instruction:”
      COURT’S INSTRUCTION NO. 10.
      “You are instructed that one may not be convicted of a felony upon the uncorroborated evidence of an accomplice. You cannot, therefore, convict the defendants upon the testimony of said witness, Mary Salmon, unless you find her testimony is corroborated by other evidence in the case tending to connect the defendants with the commission of the crime; and the corroboration is not sufficient if it merely shows that the crime was committed and the circumstances thereof. But you are instructed that the amount of such corroborating evidence and its weight is a matter solely for the jury, and if you find that such witness has been corroborated by evidence, positive or circumstantial, other than her own, tending to show that the crime was committed and connecting the defendants with its commission, you will be justified in convicting the defendants, provided you believe them guilty from all the evidence in the case and beyond a reasonable doubt.”


text:
    Highway Lumber & Supply Co. v. Commissioners of West Helena Water Company.
    5-2212
    339 S. W. 2d 609
    Opinion delivered November 7, 1960.

      Dinning <& Dinning, for appellant.

      Eugene L. Schieffler and James P. Baker, Jr., for appellee.
   Jim Johnson, Associate Justice.

This ease involves an action brought by appellant, Highway Lumber & Supply Company, seeking a mandatory injunction against appellee, Commissioners of West Helena Water Company, requiring it to install water meters and furnish water for two lots in Westwood Subdivision, a housing development of appellant, now situated within the city limits of West Helena.

In 1955 the appellant acquired twenty acres of land and platted the same into fifty-seven lots and dedicated it as Westwood Subdivision, the North line of which is adjacent to Highway No. 20, where appellee maintains a 6" water main with an ample supply of water. The first development made by the appellant consisted of commercial buildings along said North end of the property which appellee serviced from its water mains in the adjacent highway without question.

Appellant, desiring the development of the lots located behind the highway front commercial property for housing, and finding that water to said lots (which were at the time of the dedication of said subdivision located outside the city limits of West Helena) could not be provided directly from the water main in Highway 20, as was done for the front commercial property, sought to and did enter into a contract with appellee on November 18, 1955, whereby water was to be furnished these lots.

Under this contract appellant was required to deposit the sum of $500 for the construction of a 2" line into the subdivision from the 6" main in the highway. The contract provided that the appellant was permitted to build houses on a designated number of lots and upon completion of five houses he was to receive a refund of his original deposit. Appellant and appellee both complied with the terms of that contract and water was furnished to the original five houses. Five additional houses were built by the appellant in the subdivision. These houses were situated upon lots designated in the contract and were also furnished water.

Following the construction of these houses, appellant undertook to further develop the subdivision by building on two adjoining lots which were not included in the contract. These were lots No. 19 and No. 11.

On April 8, 1958, Rolla St. John, to whom the plaintiff had sold Lot No. 19, applied for a water meter for the home on said lot and this was refused. About the same time the plaintiff was completing the home on Lot No. 11 and a water meter for this residence was also denied. The denials of these two water meters brought on this lawsuit. The plaintiff says that the refusal to furnish water to these two lots constitutes an unlawful and unwarranted discrimination; that unless the defendant is enjoined he will suffer an irreparable injury and is, therefore, entitled to an injunction.

The record reveals that on or about May 21, 1957, and after several years of study, and some 18 months after the execution' of the above limited contract for water service, the water company adopted a Water Main Extension Policy. All of the subdivision developers in West Helena have abided by this policy or expressed a willingness to abide by it and the policy has been applied indiscriminately to all subdivision developers since the adoption of the policy.

Under this policy the Contract For Main Extension for a real estate development requires the subdivision developer to deposit with the water company a sum of money which represents the estimated cost of constructing and installing the proposed main extension. If, after the work is finished, the cost proves to be less than the deposit, the difference is immediately refunded to the developer. Paragraphs four and five are most important to the developer because they provide for the repayment to him of his deposit. Under paragraph four the water company would refund to him at the end of the first year of occupancy of each house three and one-half times the gross amount of water revenue received from each house. There is only one refund to each house in the subdivision. The minimum amount of actual gross revenue for each house shall not be less than Thirty Dollars and the maximum amount shall not exceed One Hundred Dollars. The City of West Helena pays the water company Fifty Dollars per year for each fire plug in town and the water company gives a developer credit for each fire hydrant in the subdivision by refunding to him three and one-half times the revenue from the one fire plug for one year only or $175.

Under paragraph six, their contract is only in effect for six years from the date the main extension is placed in service. Applying the water main extension policy and the contract to the balance of the Westwood Subdivision not covered under the original limited water service contract, the following facts developed:

Mr. Gene Cowsert, Manager of the Water Company, testified that the average gross water revenue for each house in Westwood Subdivision amounted to $36 per year. Three and one-half times $36 x 34 houses to be built on additional lots to be serviced equals $4,284, and this sum plus $175 for the fire hydrant equals $4,459. The revised detailed estimate of cost amounted to $4,493. (The first estimate was $4,708.18 and later on was reduced to $4,493.68.)

Mr. Cowsert testified that the appellant would have been entitled to receive all of his money back when he had built 34 houses. Even appellant testified he would have received all of his deposit back in six years.

Mr. Waters, owner-appellant, refused to sign the above contract and in order to obtain water for his subdivision he deposited the sum of $3,370.11 (which was the amount of money required for the construction of the mains he wanted to build at that time) under protest. The water company then constructed the water mains in accordance with the requirements of the Arkansas State Board of Health which provided a six inch main in the western part of the subdivision rather than a two inch main as desired by appellant.

Appellee contends that they refused to provide water to lots No. 11 and No. 19 for several reasons of which the main ones are as follows:

1. Because a two-inch main extended throughout the subdivision would not provide sufficient water pressure for adequate service for the development of the entire subdivision.

2. Because of the Water Extension Main Policy adopted on or about May 21, 1957.

3. Because the Arkansas State Department of Health recommended a six-inch main leading from State Highway No. 20 on the West side of the subdivision to a point . . . (designated in the subdivision). This was purely for the domestic use of water from the standpoint of the Board of Health.

4. Because the Arkansas Inspection and Bating Bureau approved a six-inch main in order to provide sufficient water pressure for adequate fire protection.

5. Because it was necessary to protect the financial stability of the West Helena Water Company.

In support of their refusal, appellee further contends in their argument which was based upon the record that: “Appellant states that for the purposes of this lawsuit it is interested only in these two lots, however, its attorney says ‘that if we build right next to it we are entitled to it. ’ On the plat of Westwood Subdivision the distance from the south end of the original two inch main to the south part of the subdivision, around the bend or loop and thence north to the state highway on the West side of the subdivision is approximately twenty-five hundred fifty feet which lacks approximately one hundred eighty feet of being half a mile. The continuous extension of the two-inch line through the subdivision would be of great advantage to appellant in saving it money but it would be of great disadvantage to the people to whom it sold homes and would also create a huge burden on the water company when later on it would have to come back and duplicate the two-inch main with a six-inch main a distance of approximately six-hundred fifty feet. Without a fire plug in Westwood Subdivision all of the citizens in West Helena would have to pay higher fire insurance premiums. In short, if the position of the appellant were upheld then there would, in fact, be discrimination against the water company, other subdivision developers and the people of West Helena generally.”

The learned Chancellor agreed that appellee’s contentions were valid and refused to grant the mandatory injunction prayed for. On appeal, appellant relies prineipally upon the following cases: City of Malvern v. Young, 205 Ark. 886, 171 S. W. 2d 470; Pine Bluff Corporation v. Toney, 96 Ark. 345, 131 S. W. 680; Consumers Company v. Hatch, 224 U. S. 148, 32 S. Ct. 465, 56 L. Ed. 703. After careful review on trial de novo we find that the cited cases do not here sustain the points urged by appellant for reversal. To the contrary, however, we do find in the City of Malvern v. Young, supra, quoted from Pond’s Law of Public Utilities, 4th Ed. Vol. 1, § 275, the following:

“Where the location of the prospective customer is unusual and the conditions of furnishing him service are peculiar because of the distance he is removed from the center or thickly populated district of the municipality or because of the sparsely settled- condition of his own neighborhood, it is only reasonable that the public service corporation providing him with its service be permitted to impose other and different conditions from those applicable to a customer centrally located in the thickly populated district of the municipality. . . . And while the public service corporation can not act arbitrarily or discriminate among its customers, present or prospective, where similarly situated, by way of favoring one customer of a class or one class over others a distinction may be made between different customers or classes of customers on account of location, amount of consumption, or such other material conditions which distinguish them from each other or from other classes.”

According to Professor Pond the water company could have made a distinction between different customers or classes of customers on account of location (Westwood subdivision was located in the Western part of West Helena and at the time of the Dedication deed the lots involved in the first contract were not even in the city limits of West Helena), amount of consumption or such other material conditions which distinguishes one customer from another.

The water company denies that there was any discrimination whatsoever against the plaintiff or anyone else. Gene Cowsert, Manager of the Water Company, testified that all other subdivision developers in West Helena had either abided by the policy or expressed a willingness to abide by it and that the policy had been applied indiscriminately to all subdivision developers since the policy was adopted. There was no evidence to the contrary. In fact, the owner-appellant testified as follows:

“Q. Have you reviewed the policy?
“A. Yes, sir; I have read it.
“Q. Do you think it is a reasonable policy?
“A. I don’t see too much wrong with it. . . .”

It is a well established rule that the burden of proof is upon the plaintiff to prove by a preponderance of the evidence that the Water Company acted arbitrarily or abused their discretion. This the appellant failed to do.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Ark. Real Estate Co., Inc. v. Fullerton.
    5-2190
    339 S. W. 2d 947
    Opinion delivered November 14, 1960.

      James B. Howard of Moses, McClellan, Arnold, Owen $ McDermott, for appellant.

      Wright, Harrison, Lindsey & Upton, for appellee.
   Carleton Harris, Chief Justice.

Appellees Fullerton and Brooks purchased respectively 5,000 and 2,500 shares of stock, at one dollar per share, in Arkansas Warehouse Corporation from John Yancey, agent for Arkansas Real Estate Company, Inc. Subsequently, appellees instituted suit in the Pulaski County Circuit' Court alleging that the stock had been. sold to them under fraudulent representations by Yancey; further, that the stock was sold in violation of the Arkansas Securities Act, offered to surrender their stock certificates (which they had previously endeavored to do), and sought a - refund of the money paid for such stock. On trial, the jury returned a verdict for appellees in the amounts sought on the basis of fraudulent misrepresentation, and the court entered its judgment accordingly, finding that the stock certificates sold to appellees had been filed with the clerk of the court, and directing that upon satisfaction of the judgments, such certificates be delivered to Arkansas Real Estate Company. From such judgment, appellants bring this appeal; appellees cross-appeal, contending that the court should have granted their motion for a directed verdict because the stock was sold in violation of the Arkansas Securities Act.

As shown by the evidence, the Arkansas Warehouse Corporation was formed for the purpose of building-warehouses to be leased, and the corporation had acquired 320 acres of land south of Roosevelt Road and east of the right-of-way for the proposed freeway through Little Rock. According to Brooks, Yancey told him that the corporation had received title to the land by issuing 1,500,000 shares of stock to the Arkansas Real Estate Company. Fullerton stated that Yancey assured him that the land was “already paid for, and it was free and clear, or anyway, there wasn’t anything- against it; they owned the land.” The stock was purchased by appellees in Warren, their home town, Brooks making his purchase on January 23, 1959, and Fullerton making his purchase on February 15th. In March or April, Brooks decided “it would be wise to cheek” on the title, and following a title examination, appellees endeavored to obtain a return of their money.

Yancey admitted on the stand that the land was not clear of encumbrances. The record reflects that about twenty acres was subject to a lien of $40,000 under a first mortgage to Bankers Insurance Company, a tax lien against the lands amounted to $3,540, and there was an indebtedness to D. W. Jones of approximately $20,000; in fact, according to Yancey, there was a total indebtedness of about $90,000 at the time the stock was sold to appellees. The witness testified that the indebtedness had subsequently been reduced by about $40,000. Admittedly, the money obtained from Brooks and Fullerton was used for that purpose. Yancey also admitted that a part of the most valuable acreage (6 acres) was not owned by the corporation, but was leased from E. L. Faucett, and that this fact was not told to appellees, Yancey explaining, “We have a lease for 99 years. If that is not owning it, I’m not going to worry about it. I will not be here, and my kids will not be here.” The rental on the lease amounted to $100 per month. The record reflects approximately thirty-four transactions involving the transfer of stock, of which sixteen or seventeen were admitted by Yancey to have been outright sales. The others were classified by him as loans, i. e., stock was given as collateral on notes executed by the real estate corporation to such individuals.

Appellant sets out three grounds for reversal, contending that there is no evidence that appellees relied on the representations by Yancey in making their purchases; that the court erred in one of the instructions given; and that testimony should have been allowed wherein appellant sought to establish the value of the land in question. Under the view we take, a discussion of these alleged errors is unnecessary, though it might be stated that all contentions have been thoroughly examined, and found to be without merit. We are of the opinion that the point urged by appellees/crossappellants in the cross-appeal is at once decisive and determinative of the litigation.

The pertinent portions of Act 397 of 1947, cited as the Arkansas Securities Act (§ 67-1201, Ark. Stats., 1957 Replacement), provide as follows :

§ 67-1206 — "No securities, except of a class exempt under Section 5 [§ 67-1205] hereof or unless sold in a transaction exempt under Section 4 [§ 67-1204], shall he sold within this State unless such securities shall have been registered by notification or by qualification as hereinafter defined. * * *”
§ 67-1214 — "It shall be unlawful for any issuer or dealer or representative thereof, either directly or indirectly, to sell or cause to be sold, offer for sale, take subscriptions for, or negotiate for the sale in any manner in this State, any contracts, stocks, bonds, or other securities (except as expressly exempt herein) unless and until said Commissioner has approved and issued his certificate therefor in accordance with the provisions of this Act. . . .”

The term "issuer” is defined by § 67-1202, subsection (e), as one

“. . . who proposes to issue or who issues or has issued or shall hereafter issue any security. Any person who acts as a promoter for and on behalf of a corporation, trust or unincorporated association or partnership of any kind to be formed shall be deemed to be an issuer.”

Subsection (g) provides:

“Any person, firm, copartnership, corporation or association, whether domestic or foreign, not the issuer, who shall in this State sell or offer for sale any of the stocks, bonds, or other securities of any issuer, or who shall, by advertisement or otherwise, profess or engage in the business of selling or offering for sale such securities, shall be deemed to be a ‘dealer’ within the meaning of this Act [§§ 67-1201 — 67-1234,] and no such dealer shall sell or offer for sale any securities, except securities qualified or exempt under the provisions of this Act or except in transactions exempted under the provisions of this Act, or profess the business of selling or offering for sale such securities unless and until he shall have qualified the same in the office of the commissioner as in this Act provided. The term ‘dealer’ shall not include an owner of such securities who shall acquire and sell same for his own account in the usual and ordinary course of business, and not for the direct or indirect promotion of any speculative enterprise; provided that such ownership is in good faith. Repeated or successive sales of any such securities shall be prima facie evidence that the claim of ownership is not bona fide. ’ ’

Section 67-1228 provides:

“Every sale or contract for sale of any security made in violation of any of the provisions of this Act [§§ 67-1201 — 67-1234] shall be voidable at the election of the purchaser and the person making such sale or contract for sale and every director or officer of the issuer whose securities are being offered for sale who shall have participated in making such sale shall be jointly and severally liable to such purchaser for the refund of all moneys or property received in payment therefor with interest at the rate of six per centum (6%) from the date of payment until date of refund and all costs and reasonable attorney’s fee incurred therein.”

The question in determining whether the motion for directed verdict should have been granted is whether the record places in issue any question of fact relative to the violation of these statutes, or, to state it differently, do the exhibits and testimony reflect, as a matter of law, the violation of the Securities Act.

The only suggestion of any dealings with the Banking Department concerning stock is found in a single line of testimony by Yancey, when he stated, “I believe there was a stock option when we got permission to issue that from the State Banking Department. We could issue stock in lieu of cash and they also had the option of taking the six per cent.” However, scrutiny of the transcript reveals that this statement referred entirely to loans. Yancey had testified at length regarding loan transactions, and in fact, the quoted statement was in reply to a question, “Now on these loan transactions, was there any agreement that they could turn these notes into common stock of Arkansas Warehouse if they so desired?” There is no doubt of non-compliance with the registration section of the Securities Act, for the parties entered into the following stipulation:

“Neither Arkansas Warehouse Corporation or Arkansas Real Estate Company, Inc., filed a registration statement with the Bank Department of Arkansas for the stock of Arkansas Warehouse Corporation; the State Banking Department has not issued a certificate authorizing the sale of this stock pursuant to the Arkansas Securities Law. That is a stipulation, your Honor.”

The first question is whether the sales made by appellants were a violation of the Securities Act. An owner of securities is permitted to make isolated sales (subsection (g), § 67-1204), or sales for his own account in the ordinary course of business. Section 67-1202, subsection (g), heretofore quoted, states in part, “the term ‘dealer’ shall not include an owner of such securities who shall acquire and sell same for his own account in the usual and ordinary course of business, and not for the direct or indirect promotion of any speculative enterprise; provided that such ownership is in good faith”. Certainly, we do not consider that appellants can come under the category “owner”, for the evidence clearly reflects that the stocks were sold as a means of directly promoting the enterprise of building warehouses. Sales were made in widely scattered localities over the state, such as Fordyce, Danville, Warren, Russellville, Pine Bluff, and Coy. Furthermore, the aforementioned section provides: “Repeated or successive sales of any such securities shall be prima facie evidence that the claim of ownership is not bona fide. Webster’s New International Dictionary defines the word “repeated” as “happening again and again”. The record shows at least sixteen or seventeen direct sales, and these were admitted by Yancey. This number of sales cannot be considered “isolated”; in fact, it amounts to one-half of the total transactions prior to the trial.

It makes little difference whether appellants be classified as dealers, promoters, or representatives. The evident fact is that they were engaged in selling stock without first registering same, or obtaining a certificate of approval, and neither the stock nor the transactions were exempt. In other words, under the undisputed facts, appellants, as a matter of law, clearly violated the Securities Act.

At the conclusion of appellees’ evidence, they moved the court for a directed verdict on the grounds that the stock was sold in violation of the Arkansas Securities Act. This was denied by the court. Appellants also moved for a directed verdict, which was granted as to Arkansas Warehouse Corporation, and Bobert Traylor, officer of Arkansas Beal Estate Company and one of the incorporators of Arkansas Warehouse Corporation, but the motion was denied as to appellants herein. At the conclusion of all the evidence, appellants again moved for a directed verdict, which was denied, and counsel for appellees again moved for a directed verdict for Brooks and Fullerton on the same ground as the first motion. The court ruled that it had concluded to let the matter go to the jury on the ground of misrepresentation only; thereafter, appellees requested the court to submit the issue relative to violation of the Securities Act to the jury specially, but the court stated: “I am overruling the plaintiffs’ motion for an instructed verdict which would, in effect, rule out the question of the Securities Act”. Both sides then offered instructions on the question of misrepresentation, and the case was submitted to the jury on that phase only. The fact that each side moved for a directed verdict is of no significance in this case; had a fact question been involved, and no instructions to the jury requested, this action could have had the effect of waiving a jury trial, and submitting the issues to the court. However, as set out in this Opinion, there was no question of fact left for the court to decide. In 53 Corpus Juris Secundum, § 77, p. 792, we find:

“A transaction involving securities will ordinarily be presumed to comply with the applicable Blue Sky Laws, and the burden of proving a violation is on the party asserting it. Thus, in an action to recover the consideration paid as the purchase price of a security on the ground that the transaction was in violation of the Blue Sky Law, the burden is on plaintiff to prove such violation and the presence of all the elements necessary to warrant recovery under the act. Defendant, on the other hand, has the burden of proving defensive matters. Thus, if defendant relies on ratification as a defense, he has the burden of proving it. Also defendant has the burden of proving that stock sold in violation of the statute was within statutory exemptions.”

The testimony of appellants did not establish a defense; nor is any defense to violation of the Securities Act argued in the briefs. As stated in Plunkett v. Winchester, 98 Ark. 160, 135 S. W. 860:

“The admitted facts showing plaintiffs entitled to relief sought, there was no question for the jury, and the verdict was properly directed.”

Also in 5B, Corpus Juris Secundum, § 1929, p. 440:

“Where plaintiff has made out a prima facie case, the facts are practically undisputed and the amount of recovery certain, and defendant, although having full opportunity to do so, has established no defense sufficient to prevent or bar the right of recovery, the appellate court, on reversing a judgment in defendant’s favor, will sometimes render the proper judgment for plaintiff, or direct the court below to do so.”

Here, appellees, not once, but twice, requested the court to direct a verdict in their favor on the point herein discussed. While no exception was saved to the court’s ruling in refusing to do so, this was unnecessary under the provisions of Act 555 of the General Assembly of 1953 (§ 27-1762, Supplement, Ark. Stats. Anno.), which provides:

“. . . but for all purposes for which an exception has heretofore been necessary, it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take. * * *”*

Appellees made known the action which they desired the trial court to take, and their reason therefor, and the court erred in not granting the motion.

Accordingly, the judgment, insofar as it relates to these appellees, is reversed, and the cause remanded to the circuit court with directions to enter judgment for appellee Fullerton in the sum of $5,000, and appellee Brooks in the sum of $2,500, together with interest at the rate of 6% per annum, costs, and a reasonable attorney’s fee.

       Yancey was an officer of both Arkansas Real Estate Company, Inc., and Arkansas Warehouse Corporation.

       This Act was repealed by Act 254 of 1959, which is also known as the Arkansas Securities Act; the latter act became effective on July 1, 1959, but Act 397 controls this litigation, since the stock was sold to appellees prior to that date.

       Emphasis supplied.

       No question is raised about the sufficiency of the motion.


text:
    Cawood v. Pierce.
    5-2233
    339 S. W. 2d 861
    Opinion delivered November 14, 1960.

      Eugene Coffelt, for appellant.

      J. T. McGill and Little & Enfield, for appellee.
   J. Seaborn Holt, Associate Justice.

This is a suit on an open account. The appellee, Earl Pierce d/b/a Pierce Produce and Feed, filed a complaint alleging that a running account existed between it and the appellant, Lee Cawood, and that after all credits had been allowed, there remained a balance due of $2,763.14 which appellant had not paid although demand for payment had been made. An itemized and verified statement of the account was made an exhibit to and part of appellee’s complaint. Appellant answered with a general denial only. He did not deny under oath the correctness of the account. In fact, he did not offer any testimony after appellee closed its case and rested, but he also rested his case. At this point, appellee asked for a directed verdict in its favor which the court granted. This appeal followed.

For reversal appellant contends: “The court was in error in directing a verdict against appellant.” We do not agree.

The record reflects that the only witness at the trial was the appellee’s bookkeeper, Mrs. Evelyn Kelley, who testified as to the correctness of a verified account which was attached to the complaint and which was introduced in evidence as an exhibit to her testimony. As indicated, appellant did not offer any testimony at the trial but rested his case after appellee had closed its case. Arkansas Statutes (1947), § 28-202 [Crawford & Moses’ Digest, § 4200] provides: “Affidavit as to correctness of account —Sufficiency.—All accounts upon which suits may be brought in any of the courts of this state, the affidavit of the plaintiff, duly taken and certified according to law, that such account is just and correct, shall be sufficient to establish the same, unless the defendant shall, under oath, deny the correctness of the account, either in whole or in part; in which case, the plaintiff shall be held to prove such part of his account as is thus denied, by other evidence. [ * * * C. & M. Dig., § 4200; Pope’s Dig., § 5211.] ”

Here the appellant did not deny the verified account and did not deny its correctness by affidavit ór by verified answer. We hold that appellee’s proof made a prima facie case of the correctness of the account. We said in Clarke v. John Wanamaker, 184 Ark. 73, 40 S. W. 2d 784: “* * * The effect of § 4200 of Crawford & Moses’ Digest is to make a verified account, when undenied, prima facie proof of its correctness. The defendant did not deny the correctness of the account by affidavit or by verified answer. She did not offer any testimony whatever, but contented herself with demurring to the complaint. By virtue of the statute above quoted, the account verified by the affidavit of the agent of the plaintiff was evidence of its correctness, and, not having been attempted to be contradicted by the defendant, warranted a judgment in favor of the plaintiff. Chicago Crayon Co. v. Choate, 102 Ark. 603, 145 S. W. 197.” See also Terry v. Esso Standard Oil Co., 220 Ark. 694, 249 S. W. 2d 577 and Walden v. Metzler, 227 Ark. 782, 301 S. W. 2d 439.

Accordingly, the judgment is affirmed.