text:
    Eddington v. City Electric Co.
    5-3225
    376 S. W. 2d 550
    Opinion delivered March 16, 1964.

      Elbert 8. Johnson, for appellant.

      Reicl £ Burge, for appellee.
   Paul Ward, Associate Justice.

This is a Workmen’s Compensation case. Claimant, Floyd Eddington, was denied compensation by the full commission, and this finding -was approved by the circuit court.

On appeal to this Court we are asked to resolve only one issue: Is the finding of the full commission (as approved by the circuit court) supported by substantial evidence? If it is so supported it is our duty to affirm the judgment of the trial court—as is established by decisions too numerous to require mention. What constitutes substantial evidence is a question of law. See: Boyd Excelsior Fuel Company v. McKown, 226 Ark. 174, 288 S. W. 2d 614, and Cummings v. United Motor Exchange, 236 Ark. 735, 368 S. W. 2d 82.

After a careful examination of the testimony and the applicable law we have reached the conclusion that there is no substantial evidence to support the finding of the commission in this case and that, consequently, the judgment of the trial court must be reversed. In support of that conclusion we set out hereafter at some length the pertinent testimony, after first giving the factual background.

The claimant (appellant), Floyd Eddington, is a married man 44 years old. He had been a pipe fitter for 15 years, and had ■worked for the City Electric Co. (appellee) for about a year. As such employee lie helped to install boilers and furnaces by putting the sections in place and adjusting the pipe connections. He was injured in June 1962 while helping install a boiler for the school at Luxora. Since the injury he has been able to do very little, if any, work. The decisive and difficult question is whether there was a causal connection between his injury and his later physical condition. We find no difficulty in concluding (from a study of the record) that claimant did suffer an injury and that his physical condition was thereafter impaired.

Lay Testimony. According to claimant: On Thursday, June 14, 1962 he and a Mr. Fair were engaged in installing a boiler of three sections—each weighing 500 to 600 pounds; it was hot (100 degrees in the shade) and humid, and they had to move each section quite a distance over muddy ground by use of a two wheel cart and then lift it in place; while they were lifting one of the heavy sections in place claimant hurt himself—said he was blind as a “bat” and his head was spinning; they took it easy the rest of the day. The following day (Friday) they worked but claimant said he felt bad, weak and used up. On the following Monday claimant went back to work, and while he and his helper (his brother, and also a pipe fitter) were installing some two inch pipe he blacked out, staggered and fell—hitting his head on the concrete floor; he Avas taken home and Dr. Godley Avas called. According to claimant Dr. Godley said the symptoms indicated heat prostration; the next morning he blacked out in the bathroom, and was then admitted to the hospital. Claimant said that on Monday the temperature Avas 102 degrees in the shade. He also said he had never previously had any physical ailments, except one minor injury about ten years previously when he lost no time at work.

The above testimony of claimant AAras corroborated by his helpers. Also, one Louis Carucci, a pipe fitter and an employee of appellee testified he had knoAvn claimant some ten years and that he never heard him complain about any physical ailments. He also stated that claimant needed more help on the job he was doing, but that the company ivas busy on other jobs.

It is undisputed that claimant had seven or eight convulsive seizures after June 1962 and that he has not worked since the injury.

Medical Testimony. Claimant was first examined by Dr. Godley. In essence Dr. Godley testified: I cannot say positively that loss of body fluid produced by prolonged heavy work in the hot sun and the blow on his head were the primary cause of appellant’s condition.

Q. “Then I will ask you if, in your opinion these were the precipitating or aggravating factors?

A. “Yes, sir. I think so.”

“...I myself thought Mr. Eddington’s difficulty started on the day that he fell and was precipitated by the heat and/or hitting his head on the ground and that since that time he has been ill and no positive diagnosis has been made.”

He further stated that claimant is still suffering from convulsive seizures, and he has not been discharged as well and able to go back to work.

Dr. Phil Orphet, who lives in Memphis and practices internal medicine, examined claimant at the request of Dr. Godley. In essence Dr. Orphet testified that he made laboratory studies and found claimant’s skull was not indented or fractured; his impression was that claimant had fainting.and swooning spells, but the origin was unknown to him; that the loss of body fluids and sodium produced by prolonged heavy work in the hot sun might have been a precipitating factor to claimant’s condition, but other things might have caused it; he could not say claimant was able to return to work; striking his head on the concrete floor could have caused a cerebral concussion—the brain tissue could be bruised even though the skull was not fractured; it is possible that a light concussion might cause a hemorrhage where there is a weakened blood vessel. ■ He advised that claimant be ex-aminecl by Dr. DeSaussure, a neurologist located in Memphis.

Dr. DeSaussure, who examined and X-rayed claimant, testified in essence: The Xray of the skull showed two or three suspicious areas—Xrays will not show damage to brain tissue; brain tumor was ruled out; he could not, from his examinations, determine the cause of claimant’s condition; he feels that claimant could continue his line of work as a pipe fitter but didn’t say when; it takes a fair degree of heat to damage the brain so as to cause convulsive seizures, but extreme heat can cause brain damage.

From the above it appears there is no positive medical evidence that claimant’s present physical condition was not caused or aggravated by his injury. Giving the greatest possible weight to the doctors ’ testimony, it only proves they do not know what caused claimant’s present physical condition. That being the situation we think this case is controlled by the case of Hall v. Pittman Construction Co., 235 Ark. 104, 357 S. W. 2d 263, where we said:

“If the claimant’s disability arises soon after the accident and is logically attributable to it, with nothing to suggest any other explanation for the employee’s condition, we may say without hesitation that there is no substantial evidence to sustain the commission’s refusal to make an award.”

Apply the above language to the facts in the case before us and a reversal is clearly indicated. The disability arose immediately after the accident, the accident occurred while claimant was working, and there is nothing to suggest any other explanation for claimant’s disability ■—the medical testimony being negative. Similar also, is the case of Clark v. Ottenheimer Brothers, 229 Ark. 383, 314 S. W. 2d 497. There, in reversing the commission, we said:

‘ ‘ There was no evidence and no opinion to the effect that appellant’s injury was not or could not have been caused by tbe heavy lifting she did. None of the four doctors who treated her, including the one who operated on her and removed the disc, was ever asked if the injury could have been caused by the work she was doing, and none expressed an opinion about the matter one way or the other. On the other hand the first doctor who treated appellant gave this written statement: ‘My opinion is the work she was doing at Ottenheimer Bros, was the causative factor to her troubles’.”

In this case, it will be recalled, the first doctor (Dr. Gi-odley) made a similar statement with reference to claimant.

We point out also that our Workmen’s Compensation law should be liberal^ construed, and that doubtful cases should be resolved in favor of the claimant. See: Boyd Excelsior Fuel Company v. McKown, supra, and Cummings v. United Motor Exchange, supra.

In accord with the conclusions heretofore expressed, the judgment of'the trial court is reversed, and the cause is remanded to the circuit court with directions to remand to the commission for further proceedings consistent with this opinion.

Reversed and remanded.


source: Caselaw Access Project

author: Jim Johnson, Associate Justice.

license: Public Domain

text:
    Massee v. Schiller.
    5-3214
    376 S. W. 2d 558
    Opinion delivered March 16, 1964.

      Ben Gore and John B. Ilainen, for appellant.

      Shaw <& Shaw, for appellee.
   Jim Johnson, Associate Justice.

This suit involves ownership of a 20-foot strip of land 1,020 feet in length along the south edge of a quarter-quarter section, part of which is used as a road. Appellants J. N. Massee and his wife, Jenness Massee,' own a parcel of land in Polk County described as the SE-b4 of the SE-b4 of Section 36, which is immediately south of the property of appellees, Bruno Schiller and his wife Berta, who own most of the NE-bi of the SE-b4 of Section 36. Between them is the strip of land here in dispute, the south 20 feet of the NE-bi of the SE-bi. The west 498 feet of that strip is now being used as a road into appellants’ property. During 1960 appellees built a fence on the south side of the eastern part of the strip (the eastern 822 feet), placing it approximately on the line dividing the XE-14 -from the SE-bi. This action apparently precipitated appellants’ suit in Polk Chancery Court. Appellants filed suit on January 15, 1963, praying that the court quiet and confirm title to the south 20 feet of the NE-bi of the SE-bi of Section 36 in appellants; that appellees be ordered to remove the fence to the north side of the strip, and that appellees be restrained from relocating fencing on this property. Appellees answered, admitting that the strip had once been used in its entirety as a “passageway” or lane, but that the eastern 790 feet of the lane had been abandoned for more than seven years as a roadway and is under fence which separates the lands owned by the parties, and further that 520 feet of the lane is still being used by appellants for ingress and egress to their property, but that such use is with the permission and acquiescence of appellees, is only a roadway easement and is not adverse to appellees’ fee simple title to the land over which the roadway easement crosses. On oral motion, the court gave either party the right to have a survey made of the disputed area. Appellees 'then amended their answer, praying that the court quiet title to the 20-foot lane in them, subject only to the roadway easement which appellants are using across the west 498 feet of the lane; and further prayed that the court order boundary line fences to be located on the true boundary line at the expense of both parties equally. Trial of the cause was had before the chancellor on March 13, 1963. After testimony of the parties, former owners, surveyors and other witnesses, the court: (1) established the boundary line between the two quarter-quarter sections as the line indicated by the court-ordered . survey which was on an old fenceline which divides these two forty-acre tracts of land, (2) found that appellants’ claim of ownership of the east 822 feet of the lane “is without merit, as this old lane has long been abandoned and lies wholly upon the lands owned by” appellees, (3) found that appellants do have an easement for roadway purposes over the west 498 feet of the lane, which roadway was found to exist by prescription, and (4) found that appellees have no claim of ownership to anything south of the old established fence and survey line. The court then quieted title in the north tract in appellees, “subject to a roadway easement across the south side of the west 498 feet of that tract as the same is now located” and dismissed appellants’ complaint. Trom the decree appellants have pursued this appeal.

Appellants claim ownership of the lane by adverse possession, and testimony relative to dominion and fences goes back before 1918 to a common owner, M. H. Howard. However, review of the testimony and pleadings reveals that at a later date a Dr. Douglas also owned both parcels of land at the same time. He acquired the north parcel in 1930, which he conveyed to appellees in 1933. This purchase of the north parcel by Dr. Douglas, who at the time owned the south parcel, annihilated any inferior interest or title such as adverse possession or easement the doctor might have acquired against the former owners of the north parcel. See 31 C. J.S., Estates, §§ 123-131; 19 Am. Jur., Estates, § 135. When Dr. Douglas later conveyed the north parcel to appellees, he conveyed it absolutely, not reserving or excepting any part of the lane, and in so doing conveyed the property free of any prior adverse possession. The effect of the chancellor’s findings was that adverse possession had not been established since the time of the doctor’s conveyance to appellees. Nor does the evidence clearly show whether an easement for roadway purposes was established on the east 822 feet of the lane subsequent to Dr. Douglas ’ conveyance to appellees, but if there was such an easement, the evidence is virtually conclusive that it has long since (well over seven years) been abandoned and its use therefore properly reverted to the owners of the servient estate, the appellees. Fulcher v. Dierks, 164 Ark. 261, 261 S. W. 645; Clinton Chamber of Commerce v. Jacobs, 212 Ark. 776, 207 S. W. 2d 616. The evidence also clearly establishes, as admitted by appellees’ answer, that appellants have an easement for road purposes across the west 498 feet of the lane for ingress and egress. On the whole case on trial de novo, we cannot say that the chancellor’s findings are against the preponderance of the evidence. The decree is therefore affirmed.


author: Frank Holt, Associate Justice.

text:
    Bussell v. Missouri Pacific Railroad Co.
    5-3153
    376 S. W. 2d 545
    Opinion delivered March 16, 1964.

      Williamson, Williamson é Ball, Coleman, Gantt é Ramsay, for appellant.

      W. J. Smith, Robert V. Light, for appellee.
   Frank Holt, Associate Justice.

This case results from a railroad crossing accident. It occurred when a Missouri Pacific freight train and a tractor-trailer truck collided where the railroad tracks cross the “new Montieello by-pass” portion of State Highway No. 81 at a right angle. The driver of the tractor-trailer, Ben Edward Bussell, was killed, the truck was practically demolished and part of its cargo destroyed. The train engine, two freight cars and a portion of the railroad track were damaged. The appellant, Mrs. Helen Louise Bussell, widow of the deceased truck driver and administratrix of his estate, and the appellant, Burks Motor Freight Line, Inc., owner of the truck, brought suit against the appellees, Missouri Pacific Railroad Company and "W. B. Iveahey, the engineer of the train, for the recovery of damages. The appellees responded by a general denial and appellee Railroad Company by counterclaim sought to recover its property damages from appellant Burks only. Appellant Burks and appellee Railroad Company stipulated as to the amount of the actual property damages sustained by each of them.

Upon trial the jury denied any recovery to the appellants upon their joint complaint. It awarded $10,-828.59 to the appellee Railroad Company upon its counterclaim. Oil appeal the appellants do not question the sufficiency of the evidence nor assert any error in the presentation and reception of the evidence. The appellants rely for reversal upon alleged errors by the trial court in the giving of certain instructions on behalf of the appellees.

Appellants first contend that the court erred in giving appellees’ Instruction No. 7 which defined “unavoidable accident”. There is no contention that it is an incorrect statement of the law. The specific objection made is that there was no evidence presented in the case to justify giving such an instruction. Appellants argue the instruction was abstract and had the effect of misleading the jury. The jury was not misled inasmuch as it returned a verdict which, in effect, found the appellees were free from negligence and the appellants were guilty of 100% negligence. The giving of an erroneous instruction is harmless error where the jury was not misled or the jury rejects the theory of the instruction. National Life & Accident Ins. Co., v. Sherod, 155 Ark. 381, 244 S. W. 436; Wright v. Covey, 233 Ark. 798, 349 S. W. 2d 344; 5A C.J.S., Appeal & Error, § 1773 (1) p. 1245. In Sutton v. Nowlin & Sons, 232 Ark. 223, 335 S. W. 2d 292, we said:

“ * * * the verdict cancelled anj* error in the matter of the Comparative Negligence Instruction and rendered harmless the giving of the wrong Comparative Negligence Instruction ’ ’.

It cannot he said that the appellants were prejudiced by the court giving this instruction, if erroneous, since the verdict rendered it harmless.

The appellants next contend that it was error to give appellees’ requested Instruction No. 8. This instruction pertains to the duty of travelers approaching a known railroad crossing. The appellants specifically objected to this instruction as being a comment on the weight of the evidence and that it is incoherent, confusing, and misleading. A careful reading of this instruction convinces us that it is not susceptible to such objection. This instruction merely recites the duty of a motorist approaching a railroad crossing, as we have so often defined. St. Louis, I M & S R Co., v. Coleman, 97 Ark. 438, 135 S. W. 338; Missouri Pacific R Co., v. King, 200 Ark. 1066, 143 S. W. 2d 55; Missouri Pacific R Co., v. Carruthers, 204 Ark. 419, 162 S. W. 2d 912. The instruction generally was a correct statement of the law. In fairness to the trial court the appellants should have specifically pointed out in what manner they considered the instruction confusing and misleading. Thus, the court would have had an opportunity to make any correction if necessary. Phoenix Insurance Co., v. Flemming, 65 Ark. 54, 44 S. W. 464; 53 Am. Jur., Trial, § 828, p. 608; Ratton v. Busby, 230 Ark. 667, 326 S. W. 2d 889; Lemm v. Sparks, 230 Ark. 105, 321 S. W. 2d 388.

The appellants argue that the words “position of peril” form an inappropriate term in Instruction No. 8. No such specific objection was made to the use of these words in Instruction No. 8. Furthermore, no objection whatsoever was made to the giving of appellees’ Instruction No. 18 which defined “position of peril”. We find no merit in any of appellants’ arguments attacking this instruction.

Appellants next urge that it was error to give appellees’ Instruction No. 9. This instruction, according' to appellants, ‘ ‘ attempts to state the general proposition that travelers approaching a railroad crossing may he assumed to act in response to the dictates of ordinary prudence and will stop before endangering themselves on the track in the path of the oncoming train”. The objections appellants made to this instruction were the same as to Instruction No. 8, i.e., it tended to comment on the evidence and was incoherent, confusing and misleading. We do not agree. Again the appellants do not specifically point out just how this instruction comments on the weight of the evidence or is misleading. The appellants do not specify how the instruction inaccurately defines the law in respect to the duty of a motorist. This instruction is a cogent statement of the permissible scope of the presumption trainmen can make in the operation of a train and is consistent with repeated declarations of this court. Blytheville, L & A S R Co., v. Gessell, 158 Ark. 569, 250 S. W. 881; Missouri Pacific R Co., v. Davis, 197 Ark. 830, 125 S. W. 2d 785; Missouri Pacific R Co., v. Merrell, 200 Ark. 1061, 143 S. W. 2d 51. The instruction is a correct statement of the law. The contention by appellants that it is abstract comes too late as such objection was first raised on appeal. Further, there was evidence bearing on the issue as to when the engineer first saw the deceased approaching the crossing and when he first applied the train’s brakes to avoid the collision.

Appellants next contend that it was reversible error for the court to give appellees’ Instruction No. 12. This instruction advised the jury that the purpose of the statute which requires railroads to maintain signs at crossings is to provide a notice or warning to travelers using the highway that a railroad crossing exists and that if the warning boards at this crossing ‘ ‘ gave notice of the existence of the crossing to travelers at a time when they could avoid entering a position of peril by the exercise of due care”, then “a difference between the stautory specifications and the specifications to which these signs were built would not be evidence of negligence that was a proximate cause of this accident.” Appellants object on the basis that the instruction is an incorrect statement of the law in the instant case; that the evidence shows these signs did not perform the purpose of warning travelers of the existence of the crossing; and that this instruction ignores Ark. Stat. Ann. § 73-717 (Repl. 1957) relating to warning boards required at railroad crossings. It is undisputed that a crossarm sign existed at a distance of approximately thirty-nine feet from either side of this crossing. These signs were lettered “RAILROAD CROSSING-” in letters six inches high. However, the statute mentioned above provides the letters shall be at least nine inches high with the legend: RAILROAD CROSSING —LOOK OUT FOR THE CARS WHILE THE BELL RINGS OR THE WHISTLE SOUNDS.

It is well settled law that the violation of a safety statute is- evidence of negligence. However, it is required that such negligence be a proximate cause of the injuries before the rule is applicable in a particular case, Missouri Pacific R Co., v. Price, 182 Ark. 801, 33 S. W. 2d 366; 65 C.J.S. Negligence, § 105, p. 654. Furthermore, when we review this instruction together with appellants’ Instruction No. 3 which is predicated upon Ark. Stat. Ann. § 73-717, we do not find them in conflict. Appellants’ Instruction No. 3 told the jury that violation of this statute, “although not necessarily negligent, is evidence of negligence to be considered by you along with all the other facts and circumstances in the case.” The sole purpose of these crossarm signs was to give notice of the crossing. The evidence is undisputed that the decedent had traveled this - road and crossing almost every week for some eighteen months preceding this collision. Also, there existed five hundred twenty-eight feet from this crossing an oval sign warning of the railroad crossing.

Appellants also argue that this instruction is defective in that it is a comment upon the evidence, the word “travelers” is vague, the term “position of peril” is misleading. None of these objections were raised at the time of the trial and we cannot first'consider them here on appeal. Appellants further argue that the instruction fails to take into account other signs and lighting conditions in the vicinity of the crossing. No such objection was made. If the appellants considered they were entitled to an instruction relating to the effect, if any, other signs and lighting conditions along the highway and at the railroad crossing might have had upon motorists, or the deceased in particular, they should have offered such an instruction and they did not do so.

The appellants also contend that the giving of appellees’ Instruction No. 13 was reversible error. We do not agree. This instruction enunciated the burden of proof required of the appellants. The appellants specifically object on the basis that it is “repetitive and redundant” which “tends to give unnecessary and undue emphasis” upon appellants’ burden of proof and “tends to amount to a comment by the court upon the evidence required” of the appellants. We do not agree. This instruction, inter alia, advises the jury not to guess, speculate or surmise in arriving at their verdict. This is a proper limitation upon the jury. In the case at bar all of appellants’ instructions,' twenty-one in number, were given covering appellants’ theory of the case. The appellees offered twenty-one instructions and the court excluded four of them in giving the jury appellees’ theory of the case. It cannot be said that repetition in the giving of some instructions can always be avoided. It is consistent repetition with undue emphasis that should be avoided. Goodin v. Boyd-Sicard Coal Co., 197 Ark. 175, 122 S. W. 2d 548; Furlow v. United Oil Mills, 104 Ark. 489, 149 S. W. 69; Hutcheson v. Clapp, 216 Ark. 517, 226 S. W. 2d 546. Upon a review of the instructions as a whole, in the instant case, we do not find undue stress or emphasis to exist. We have reviewed the other arguments advanced by appellants under this point and find them without merit.

We next consider appellants’ objection to appellees’ Instruction No. 21 as modified and given by the court. This instruction pertains to a safety regulation promulgated by the Interstate Commerce Commission pursuant to its authority to make such regulations as provided in 49 U.S.C.A. § 304. Appellants’ main objection to this instruction is that the “violation of an ICC safety regulation cannot be evidence of negligence, since such regulation is, by its very nature, nonlegislative in character.” Appellants contend that the giving of this instruction was reversible error. We cannot agree. In the very recent case of Ratton v. Busby, supra, we recognized that a regulation promulgated by an appropriate agency of the federal government effectively establishes a standard of conduct, the violation of which would be evidence of negligence. It is well settled that the rules and regulations of the Interstate Commerce Commission have the force and effect of law as though prescribed in terms by the statute. Atchison, T. and S.F.R. Co., v. Scarlett, 300 U.S. 471; Interstate Motor Lines, Inc., v. Great Western Ry. Co., 161 F. 2d 968 (10 Cir., 1947); New Amsterdam Cas. Co., v. Novick Transfer Co., 274 F. 2d 916 (4 Cir., 1960); Restatement, Torts, § 285. Furthermore, the duty imposed by this regulation is less rigorous than that required by Ark. Stat. Ann. § 75-637 (a) 4. (Supp. 1963) which appears applicable in the instant case. The appellants also contend that this instruction was improper because of the absence of evidence that the deceased truck driver was aware of the existence of such a safety regulation. The president of the truck line testified, however, that preceding this collision booklets containing safety regulations, including this particular one,'.'were distributed to each of the drivers employed by Burks for the drivers’ information and compliance. We find no merit in any of the objections to this instruction as argued by the appellants.

Appellants further contend that the giving of appellees’ Instructions Nos. 15,19 and 20 was reversible error. Instruction No. 15 relates to the statutory duty of appellee Railroad Company concerning the blowing of its whistle or ringing its bell. Instruction No. 19 was a general observation on the duty of drivers of vehicles to exercise ordinary care for their safety and the safety of others. Instruction No. 20 related to the duty of the appellee Railroad Company to erect automatic warning devices at a grade crossing under abnormally dangerous circumstances. We have carefully examined appellants’ general and specific objections to these instructions, as well as the others discussed, and find them without merit.

It becomes unnecessary for us to consider the appellees’ contention that the evidence adduced in this case did not make a submissible issue for the jury inasmuch as we find no reversible error in the questioned instructions.

The judgment is affirmed.


author: Carretón Harris, Chief Justice.

text:
    Trotter and Harris v. State.
    5092-5093
    377 S. W. 2d 14
    Opinion delivered March 23, 1964.
    [Rehearing denied April 20, 1964.]

      Thomas L. Cushion and George Howard, Jr., for appellant.

      Bruce Bennett, Attorney General, By Jack L. Lessenberry, Asst. Atty. General, for appellee.
   Carretón Harris, Chief Justice.

On the night of February 16, 1963, a young woman resident of Monticello, a school teacher, 23 years of age, and her escort, Jerry Wilson, whom she had dated for some two years, parked in a lonely area in Drew County. The couple, on the evening in question, had previously met at a basketball game, following which they went to two restaurants, and, after leaving other friends, about midnight, drove to a country road, known as the old college road, and sometimes called “lovers’ lane.” According to the testimony of the young woman, they talked and listened to the radio for about an hour and a half, when they suddenly heard a voice on the man’s side, telling them to get out of the car. Wilson got out, and she moved to the other side, and shut and locked the door. Another man on that side of the automobile demanded that the door be opened. As she asked Wilson what to do, the first man struck her companion over the head with the butt of a pistol, and she started the car and attempted to drive off; however, in the hurry, she was unable to locate the light switch, and the car went into a ditch at the side of the road; also, shots were being fired at her, and she felt a burning sensation at the back of her head. The two men, Negroes, knocked the glass out on the right side of the car, turned off the motor and radio, and dragged the prosecuting witness to their car, placed her in the back seat, and drove off. The smaller of the Negroes got in the back seat with her, and criminally assaulted her, the larger one driving the automobile at the time. The car was then stopped, and the larger Negro raped her. Thereafter, each one raped her a second time, on all occasions threatening her life if she did not cease resistance. Following the second attack by the larger Negro, .he again got into the driver’s seat, the smaller one staying in the back with the victim, and after driving for a while, the car was stopped, and the larger man told her to take off all of her clothes. Despite her pleadings, she was compelled to do so, and was then told to ‘ ‘ start walking.” After walking, completely naked, for some distance over a .hard rock and gravel road, she finally came to a house occupied by a Negro couple, and screamed for help. The man and his wife permitted her to come in, and the husband told his wife to get some .clothes to put on the victim, and they then took her to town. Within a few hours, appellants were arrested, and charged with the crime.

On February 25, counsel was appointed to represent the defendants, and thereafter, on motion of such counsel, appellants were committed to the State Hospital for observation. Subsequently, the Superintendent of the hospital submitted his report, finding that both appellants were “without psychosis;” further, that appellants were not mentally ill to the degree of legal irresponsibility at the time of the examination, and that they were “probably” not mentally ill to the degree of legal irresponsibility at the time of the alleged commission of the offenses.

Thereafter, after the filing of several motions, which will be hereinafter discussed, the cases against appellants, by agreement of counsel for the state and the defendants, were consolidated for trial, and on April 9 the trial commenced, appellants pleading not guilty. The jury found both guilty of the crime of rape as charged, and the court thereafter entered its judgment, sentencing each to death.

After the trial, Harris obtained separate counsel, and a motion for new trial was filed. A similar motion was filed on behalf of Trotter by the court-appointed attorney, who had represented the defendants during all proceedings. After a hearing, the court entered its order overruling both motions. Thereafter, the convictions were duly appealed to this court.

For reversal, appellant Harris relies upon four points, and appellant Trotter relies upon the same first three points. The alleged errors of the court are as follows:

“1. The Court abused its discretion in overruling appellant’s motion for change of venue.

2. The Court erred in overruling appellant’s motion to quash the jury panel and further erred in not granting a new trial after the submission of additional evidence on the contention that racial discrimination existed in the selection of jurors in Drew County.

3. The Court erred in permitting state witness to testify to alleged admissions made by appellant.

4. The Court abused its discretion in appointing one counsel to represent both appellants.”

Before discussing these points relied upon by appellants, and argued in their briefs, we first discuss the proof offered at the trial as a matter of determining whether there was substantial evidence to support the verdict. As is customary, the first three assignments of error in the motion for new trial assert that the verdict of the jury was contrary to the evidence, contrary to the law, and contrary to the law and the evidence. In addition to the testimony of the prosecuting witness, heretofore related, the following evidence appears in the record.

Jerry Wilson, a senior student at Arkansas A. & M. College, and the companion of the prosecuting witness on the occasion of the acts in question, testified that, after leaving other friends, he and the young woman drove out to the old college road and parked, talking and listening to the radio; that shortly after 1:00 A.M. lie heard, a voice at the window, telling him to ‘ ‘ Get out of that car,” and he observed a Negro with a pistol standing at the window (later identified as Trotter). On opening the door to get out, the dome light of the car came on, and Wilson saw another Negro at the rear of the car that he subsequently identified as Harris; he gave Trotter his wallet and pocket change, and was ordered by that appellant to turn around. The witness testified that he was then hit in the back of the head, and knocked to the ground; that he heard a shot as the car suddenly drove away; that two other shots were fired, and he arose to his feet, and started toward the car which had gone into the ditch; that Harris grabbed him, but he managed to get free; that he broke away and ran to a house about a quarter of a mile back, and there telephoned the sheriff. Wilson had observed a 1953 or 1954 Plymouth with a light top and dark bottom parked a short distance back of where he had parked.

Sheriff Jack Towler of Drew County and other officers answered the call, but drove back into Monticello upon receiving information by radio that the young woman had been brought into town. Both the woman and Wilson were taken to the hospital; Wilson’s head was dressed, and, after remaining at the hospital for about an hour, he left with the officers. They proceeded to the home of Trotter, and the witness noticed the car beside the house, and identified it as the one he had earlier seen on the road at the scene of the crime. After examining the automobile, Wilson went inside the house with the officers, and recognized Trotter as one of the attackers. Thereafter, around 8:00 o ’clock in the morning, Wilson was taken to the jail to see Harris, who had in the meantime been arrested.

“We stood at the cell door. I saw this little Negro, which I know now as Harris, and he stood over by the bunk. I looked into the cell at him. I looked at this man and made the statement, ‘do you remember me? Have you seen me before?’ He looked right at me and remarked, ‘ yes I saw you last night. ’ ’ ’

When asked, during the trial, if lie was positive in Ms identification of the two men that had attacked him, Wilson replied, “Yes Sir. I am absolutely positive. I have no feelings of doubt.”

Dr. Paul Allen Wallick, a physician of Monticello, testified that he received a call to go to the hospital about 4:00 A.M.; that after arriving, he examined the young-woman and Wilson. As to the woman, he stated:

“She was on the examining- table. She was draped with a sheet. Underneath the sheet she had on a rather faded loose fitting- dress without any underclothes. There was blood over her face and in her hair and down her neck and shoulders. And some on the dress. There was blood down her legs and around her genital area— female area and up on the abdomen. She had a perforating wound of the scalp, again-in the area of the back of the head. One entrance was approximately an inch and a half from the exit. I’ll put it this way. The two openings were about an inch and a half apart.”

He stated that the head wound was caused by an object which “penetrated one side and exited on the other side.” In describing his examination of her private parts, the doctor stated:

“There was a large amount of bright red blood in the pubic hair, down the thighs, down to and below the knees. There was bright red blood, which was still fresh, coming from the female opening. There was blood on the external portion of the female opening* and also blood in the female canal—birth canal. She had a laceration or a tear of the hymeneal ring, which is commonly known as the virginal ring, which extended through the entire ring into the internal portion of the vaginal canal. ’ ’

He stated that she had been penetrated, and further, that he found large blisters on the ball and toes of each foot.

As to Wilson, the witness stated that he found a ragged lesion of the scalp in the parieto-occipital area (back of the head). The doctor stated that he washed the head area, shaved the hair from around the wound, applied a dressing, and gave the patient a shot of penicillin and tetanus toxoid.

Sheriff Towler verified that he had received the call from Wilson, and went to the place where the attack had occurred. There, he found an automobile in the ditch with the left front glass and the right vent glass broken; after receiving the radio report that the young woman had been taken into town, he immediately went into Monticello where he was informed that Trotter owned a car fitting the description that Wilson had given to him; he then proceeded to Trotter’s house, saw a 1953 or 1954 Plymouth two-toned automobile parked there, checked the car, and noticed stains of some sort on the rear seat, and observed that the hood was still warm. The officer testified that he was then admitted to the house by Trotter, and saw stains of some kind on the shorts which Trotter was wearing. Trotter was married, but was living with his Mother. The sheriff stated that he advised Trotter of his constitutional rights, and that the suspect did not have to tell him anything. The officer then questioned Trotter as to his whereabouts during the night, and was told that the appellant had gone to Dermott, naming persons who had purportedly been with him. The officer next asked Trotter if he could explain the blood on his shorts, but no explanation was forthcoming. Towler noticed a speckled shirt, lying on the foot of the bed, which Trotter stated was the shirt that he had been wearing. The shirt had blood on the right sleeve, and on the tail. Appellant identified the clothes that he had been wearing, and the sheriff rolled them up and placed Trotter under arrest. He was taken to the jail, Trotter driving his own car. The sheriff next checked with the persons that Trotter had mentioned as making the trip to Dermott with him, and from one of them, obtained information that caused him to go to the home of Albert Harris. Harris’ wife admitted the officers, and Harris was in bed. After being questioned relative to his whereabouts during the night, and what he had worn, Harris produced a pair of corduroy pants, and the sheriff discovered a ladies’ wrist watch in Harris’ billfold which was found in the pocket of the trousers. Towler .stated that he told appellant that, under the Constitution, .he (Harris) did not have to say anything, bnt with that understanding, he would like to know about the watch. •Harris then said that he obtained the watch from Orion .Trotter, and further stated' that, after returning from Dermott, he and Trotter drove out on the road in the country, stopped their car and walked down to the automobile, which was parked; that they got the boy out, and took the young woman and put her in Trotter’s car. Harris stated that he was driving, and did not participate in any way in the 'rape.

After daylight, the car from which the woman had been dragged was examined, revealing shattered glass on the floor board and in the seat, and blood on the front cushion. An examination was made of Trotter’s automobile, and blood stains were found in the rear,- seat of the car, and also blood on the left rear door panel. The back seat was taken out, and a red billfold discovered. The billfold contained a poll tax receipt with the name of the prosecuting witness on it, a deposit slip from one of the Monticello banks, and several receipts from stores. Subsequently, the sheriff called the circuit judge, and obtained a court order to transfer the prisoners to the state penitentiary. Towler returned to the home of Trotter, and advised appellant’s Mother that he was looking for a gun that was involved in the alleged crime. When told that he would have to get a search warrant, the officer started to leave for that purpose, but was then informed that there was a gun in the house, and that it belonged to her. She pulled up a mattress, and took out a brown paper sack which had a 38 caliber pistol in it. Towler noticed a hair hanging from the ejector, and with the permission of appellant’s Mother, took the pistol with him. On closer inspection, he noticed that a part of the handle on the butt had been broken. On going-back to the scene, and making the search with one of the city officers, a piece of handle was found on the ground where the right vent of the car had been shattered. The gun, piece of handle, and various items of a woman’s clothing which were subsequently found by the officers in the general area of the crime, together with two bullets which were recovered from the car operated by the woman, were taken to the crime laboratory in Little Rock for examination.

Captain Paul McDonald of the State Police, in charge of the crime laboratory, testified that the broken piece of pistol handle fit the handle of the pistol which had been sent in, and also, in explaining to the jury the ballistics test that was made, positively identified one of the bullets found in the car as being fired from the pistol.

Dr. Robert R. Cole, resident physician at the University of Arkansas Medical Center, testified that he performed a benzidine test, and determined that the stains on the various articles of clothing were human blood. He was unable to type the blood stains, nor could he determine if the hair on the gun was the same as the sample received.

Artis Lee Jefferson testified that around 3:00 o’clock in the morning, he heard his dog barking.

“He was barking like he hadn’t been barking before and I told my wife I was going to get up and look and see Avhat was happening. About the time I got to the door somebody Avas bamming on the door. I never had heard anything like that before. There-was a bunch of screaming and hollowing and crying for help and I didn’t go to the door. So, finally the door opened and there Avas a lady with no clothes on. * * * I backed back in the room after I seen what kind of shape she was in. I told my Avife to come.”

Clemie Jefferson, the wife, verified the statements of her husband, stated that she gave the girl some clothes to put on, and noted the bleeding on the head and private parts.

This summarizes the evidence offered at the trial, and it is quite apparent that it was ample to sustain the finding of the jury. We now proceed to a discussion of the points specifically relied upon by appellants for reversal.

I.

The Question of Change of Venue. Ark. Stat. Ann. § 43-1502 (1947) sets forth the manner in which a defendants shall apply for a change of venue. That section requires the affidavit of two credible persons, who are qualified electors, residents of the county, and not related to the defendant in any way, wherein the facts relied upon for change of venue are set forth. In Hildreth v. State, 214 Ark. 710, 217 S. W. 2d 622, though no affidavits were presented, we held that the trial court erred in refusing to hear testimony in support of a motion for a change of venue. There, it was said:

“The court’s action in refusing to hear testimony was contrary to established principles. We have held that the trial court must be guided by the evidence and cannot rely upon its own knowledge of local conditions, for the judge must not also be a witness. ’ ’

In the instant case, the court did hear testimony, which was offered by counsel for appellants, including that of the Chief of Police of Monticello, the Sheriff of Drew County, and Mrs. Frances Jaggers, the editor of the Monticello newspaper. The evidence reflected that there had been a lot of discussion about the case, and the Chief of Police stated that it had received quite a bit of publicity; however, the witness said that he had not heard any threats made, nor any expression as to the guilt or innocence of the men who had been charged. The sheriff testified that appellants were taken into custody before common knowledge of the crime spread over the city and county; that there was no gathering of crowds; that he had received no information that caused concern as to tlieir welfare. Mrs. Jaggers testified that an article appeared in her paper on February 21, dealing with the arrest, and a subsequent article relative to the appointment of counsel and the transfer of the prisoners to the State Hospital. She stated that no unusual number of people had talked to her about the case, and that she had heard no rumors or statements of violent feelings toward the defendants.

Counsel for Harris asserts that appointed counsel did not have sufficient opportunity to make an investigation as to public sentiment. We.do not agree, since the record reflects that counsel was advised of his appointment to represent appellants on February 25, and the hearing on the request for change of venue was heard on April 5. It is also pointed out that the circuit judge entered an order on the same day that appellants were arrested, directing that the prisoners be transported to the State Penitentiary for safekeeping. We do not think this precautionary action by the circuit judge indicates that appellants could not obtain a fair trial in the county. In fact, it would appear that the order was issued before news of the crime became widespread. Certainly, it was prudent that such action be taken where such a violent crime had been committed. But the fact that the court was “playing safe,” as far as the welfare of the prisoners was concerned, does not establish a feeling of hostility and vindictiveness among the residents of the community. An individual may lock the doors of his home at night, but this does not mean that he expects someone to unlawfully enter his house; rather, it is only a precautionary move to prevent the possibility of that happening. In the cases of Perry and Coggins v. State of Arkansas, 232 Ark. 959, 342 S. W. 2d 95, and Lauderdale v. State, 233 Ark. 96, 343 S. W. 2d 422, the defendants were charged with participation in the dynamiting of the Little Bock School Board Office, and other property, the violence being designed to harass the Little Bock School Board and certain city officials for their role in the integration of Negro pupils into the Little Bock school system. In the Perry and Coggins case, a change of venue was sought, which included thirteen supporting affidavits, nine of -the thirteen testifying at the hearing to the effect that the defendants could not receive a fair trial. The state filed counter affidavits from twenty-seven persons, twenty-one testifying to the contrary. In the Lauderdale case, both appellant and the state called witnesses in regard to the change of venue, twenty-three persons testifying. In each instance, the court declined to grant the motion, and we held that it had not been shown that the court abused its discretion in refusing to enter such an order.

Here, there is not one line of evidence in the record which indicates that appellants could not receive a fair trial in Drew County, and we certainly cannot say that the court abused its discretion in refusing to grant the motion.

II.

The Question of Racial Discrimination in the selection of Jurors in Dreio County. Appellants vigorously argue that members of the Negro race have been systematically excluded, or their number limited, in the selection of the jury panel. A motion to quash the panel because of systematic exclusion of members of the Negro race was filed by the court-appointed counsel on April 2, and counsel examined the sheriff, Cecil T. Boone, one of the jury commissioners, and Audrey Withers, the circuit clerk, relative to this contention. This evidence reflected that approximately 4,GOO poll tax receipts were issued in the county in 1962, of which approximately one-fourth was issued to Negroes. Examination disclosed that a poll tax book was furnished the jury commission, the book designating the race of the qualified .electors. The clerk their testified as to the number of Negroes who had served on the jury at the various terms of court since 1957. The court denied the motion. Following the filing of the motion for a new trial, additional testimony was submitted on this same point. This evidence included the fact that the percentage of non-whites .in Drew County was 33.9% of the total population.

Witnesses examined were the- county clerk, Boone the circuit clerk, Ed Grubbs, a jury commissioner, Arnett Spencer, a Negro citizen of Drew County, Arthur Brown, a Negro citizen of Drew County, Joseph Sims, likewise a Negro citizen of Drew County, and the sheriff. By this evidence, appellants sought to show that only a small percentage of eligible Negroes had served since 1953; that the jury commissioners had made no special effort to acquaint themselves with qualified Negro electors; that several Negroes called for jury service had been called several times before, and that many of the Negroes were over the age of 65 years.

At the outset, let it be stated that we are definitely of the opinion that, under our rules of procedure, appellants are not in a position to complain that they were not tried by an impartial jury, i.e., they did not exhaust their peremptory challenges. The record herein reveals that eight Negroes appeared on the jury lists; that two of these Negroes were excused by the court for cause, and three were excused by appellants’ counsel through peremptory challenge after the state’s attorney had accepted them; actually, three Negroes remained on the panel whose names were not called, because the jury had already been accepted before their names were reached.

Under Arkansas law (Ark. Stat. Ann. § 43-1922 (1947)), a defendant in a capital case is given twelve peremptory challenges, and, in the instant case, appellants only used eight peremptory challenges. Throughout the years, no rule of procedure has been more consistently adhered to than the rule that a defendant cannot complain of the composition of the jury if he does not exhaust his challenges. In Benton v. State, 30 Ark. 32, decided in 1875, Chief Justice English pointed out that this rule had stood as a precept of criminal practice in this state, for a period of over 22 years. In a long-line of cases, we have consistently upheld the rule to the present time. A cursory examination of our cases reveals over thirty-five criminal cases in which this rule has been cited and adhered to. Wright v. State, 35 Ark. 639; McDaniel v. State, 228 Ark. 1122, 313 S. W. 2d 77; Glenn v. State, 71 Ark. 86, 71 S. W. 254; Keese & Pilgreen v. State, 223 Ark. 261, 265 S. W. 2d 542; Johnson v. State, 97 Ark. 131, 133 S. W. 596; Morgan v. State, 169 Ark. 579, 275 S. W. 918; Rutledge v. State, 222 Ark. 504, 262 S. W. 2d 650; and Kurck v. State, 235 Ark. 688, 362 S. W. 2d 713.

The Federal rule appears to be the same. In Jordan v. United States of America, 295 F. 2d 355 (1961), Jordan was found guilty by a jury of the purchase and sale of narcotics. In seeking to reverse the judgment, he set up two grounds, one of which was the fact that the .trial court erred in denying his motion to quash the jury panel. Jordan had been tried twice on these charges during the same jury term. In the first trial, the jury disagreed, and a mistrial was declared. Prior to his second trial, and during the same term, thirteen other defendants in narcotic cases had been tried and convicted. Government witnesses against Jordan had testified in some of the other trials. Jordan’s motion to quash the jury panel alleged the mistrial, the number of other cases involving narcotic violations and heard by some members of the same jury panel, and the publicity given such trials, as reasons for the impossibility of a fair trial for him before the jury panel. At the second trial various questions were asked at the v.oir dire examination of the jurors. There were no challenges for cause and Jordan exercised only five of his ten peremptory challenges. The selected jury consisted of four new members of the panel, two from the old panel, who had sat on none of the previous narcotic cases, and six of the old panel, who had been on such cases. In holding the alleged error to be without merit, the United States Court of Appeals, Tenth Circuit, in an opinion by Judge Breitenstein, said:

“By-his failure to exercise any challenge for cause, and by his use of only half of his peremptory challenges, the defendant has waived the right to complain that he was not tided by an impartial jury.”

On January 22, 1962, the United States Supreme Court denied Certiorari. See also Graham v. United States, 257 F. 2 724.

In People v. Ford, 168 N. E. 2d 33 (Illinois), Ford was found guilty of murder, and sentenced to the penitentiary for a term of 99 years. Several alleged grounds for reversal were raised, which were found to be without merit by the Illinois Supreme Court. From the opinion:

“Further objecting to the jury, defendant argues that he ivas prejudiced by the fact that the first eight jurors accepted were Negroes, by improper remarks made by the State’s Attorney during the voir dire, and by the length of the voir dire itself. It is true that the first eight jurors picked in this case were Negroes, and that after two of those jurors had expressed reluctance about serving upon an all colored jury and the defense counsel had asked that Negroes be excluded from the third jury panel, the court sustained the defendant’s motion and thereafter only white jurors were accepted. We fail, however, to see how defendant ivas prejudiced by this action. Since the record does not indicate that he exhausted his peremptory challenges, he was as much responsible for picking the first eight jurors as was the People, the remaining jurors were selected in accordance with his own request. We have frequently stated that a defendant, having failed to use his peremptory diallenges, is in no position to complain concerning jury selections.”

These holdings seem to be in accordance with the general rule. In 50 C.J.S., Paragraph 256, Pages 1017 and 1018, we find:

“Failure to exhaiost peremptory challenges. It is ordinarily held that, if a competent jury is obtained without exhausting the peremptory challenges of the objecting party, he cannot avail himself of any error or irregularity in the summoning or selection of the jury, or in the action of the court in refusing to sustain a challenge to the array, or motion to quash the venire; or in excusing or not excusing jurors, or rejecting and discharging jurors if its own motion for insufficient cause.”

However, in Darcy v. Handy, 351 U. S. 454 (1955), when counsel did not exhaust his peremptory challenges, the United States Supreme Court stated:

“The failure of petitioner’s counsel to exhaust the means provided to prevent the drawing of an unfair trial jury from a community allegedly infected with hysteria and prejudice against petitioner while not dis-positive, is significant.”

"While under our holdings, throughout the history of this court, the alleged point is without merit, nevertheless, because of the fact that numerous cases from various jurisdictions have been reversed due to alleged discrimination in the selection of the jury panel, and because of the holding in Darcy that the failure to exhaust peremptory challenges is, though significant, not conclusive, we discuss the various facts relied upon by appellants to establish discrimination.

First, appellants point out that Negroes comprise 33.9% of the population, and 25% of the qualified electors of Drew County, but that for the past twenty-one consecutive terms of court, only 6.3% of the persons called for jury service have been Negroes. In Cassell v. Texas, 339 U. S. 282, it was held that a jury is not required to have proportional representation of races in order to assure equal protection of the law. In fact, that case held that proportional racial limitation, as such, is forbidden. It is true that up until the February 1963 term of court, the number of Negroes selected for jury service had not exceeded five, and in most instances did not exceed three; however, at the term of court in question, eight Negroes were called for service. If proper representation was included in this panel, there certainly could be no prejudice to appellants because of discrimination in prior years. Under that argument, a proper panel could never be selected. Appellants vigorously argue that none of the commissioners testified that they made an effort to become acquainted with the Negro electors in Drew County. This is an effort to bring the case within an additional holding in Cassell v. Texas, supra. There, jury commissioners in Dallas stated that the reason they did not select Negroes for the grand jury list was because of the fact that they did not know any who were qualified. It was shown that in selecting persons for grand jury service, the commissioners had consistently limited the selection of Negroes to not more than one on each grand jury. The United States Supreme Court reversed because of discrimination.

Two of the commissioners testified in the instant case, and their testimony was to the effect that they selected Negroes thát they knew to be qualified, but made no particular effort to learn of others who might be qualified. The third commissioner was not called by appellants to testify. Of course, because of population, the selection of eight jurors in Drew County, Arkansas, with a total population of slightly over 15,000, is hardly comparable to the selection of one juror in Dallas County, Texas, with a population of approximately 400,000, and we can find nothing in the Cassell case that indicates discrimination in the present case. In connection with this argument, appellants complain that the poll tax lists were used, which show the race of the elector. In Avery v. Georgia, 345 U. S. 559, the Supreme Court said,

“Obviously that practice makes it easier for those to discriminate who are of a mind to discriminate. ’ ’

In Smith v. Texas, 311 U. S. 128, the same court stated that “discrimination can arise from commissioners who know no Negroes as well as from commissioners who know, but eliminate them.” This presents somewhat of an enigma, for it is puzzling to determine how a jury commissioner, who is acquainted with but few, if any, Negroes, can go about finding qualified members of that race without the use of a list designating the race of those eligible to serve. In other words, in making an effort to obtain qualified Negroes for the panel, his inquiry and investigation as to their qualifications to serve would seem to depend upon his first ascertaining that they were Negroes. Appellants assert that,

“While the jury commission has gone about to systematically include a few Negroes on the panel, they have done so in a manner as to further discriminate against the Negro by restricting the number to a few that it would be virtually impossible to actually get a Negro on a particular jury without the approval of the. prosecutor, even though there may be Negroes on the panel inasmuch as the state has ten peremptory challenges in a capital case.”

It is interesting to note that it is conceded that Negroes have been systematically included, but, according to this contention, there would have to be as many as eleven colored jurors on any regular panel in Arkansas, else there is discrimination. This contention was passed on adversely to appellants’ reasoning in Hall v. United States, 168 F. 2d 161.

Complaint is made that some Negroes called for jury service had been called several times before. While the record is far from clear, we are unable to determine that more than two members of this panel had been called before, one' on several different occasions. This would hardly seem sufficient repetition to indicate studied discrimination.

Finally, appellants mention that several who have served as jurors were 65 years of age or over. We know of no case which holds that elderly people, merely because of their age, are disqualified from jury service. Under Arkansas law, Ark. Stat. Ann. § 39-104, (Repl. 1962), persons 65 years of age cannot be compelled to serve on a grand or petit jury, and the court is authorized to excuse those who may be selected for jury service who are over 60 years of age, but there is certainly no evidence in this record that any juror was compelled to serve. It is entirely logical that the commissioners would be more acquainted with the qualifications of elderly or middle aged Negroes, since these men would have had more opportunity to establish themselves in the community. In Bailey v. Henslee, 287 F. 2d 936, nine facts were mentioned which the court said, in the aggregate, led to the conclusion that a prima facie case of limitation of members of the Negro race in the petit jury panel had been established, and that the state did not rebut it. Even then, the court commented that “this case may be a close one.” In the present case, it would not appear that over four of those factors are present to any degree, and we are not persuaded that discrimination is shown.

Question of State Testimony as to Admissions. This alleged error has reference to the testimony of the sheriff, wherein he stated that Harris admitted that appellants had placed the prosecuting witness in their car, and that he had driven same; also; the testimony of the sheriff that Harris stated that he obtained the watch from Trotter. The court instructed the jury at the time that this testimony could not be considered in determining Trotter’s guilt or innocence. It is urged that these admissions were introduced into evidence before the jury, without first having been considered by the court in the absence of the jury, and prejudicial error was thus committed. It is true that, normally, testimony relative to the voluntariness of a confession is first taken in chambers, and if the court finds that the confession was not voluntarily made, the state is not permitted to introduce it. On the other hand, if there is a question as to the voluntariness, the matter is presented to the jury for their determination. This procedure is generally followed where written confessions are under examination, and where there is a contention that the confession was involuntarily made. The failure to first hear testimony in chambers does not, in itself, mean that reversible error has been committed. In Davis v. State, 182 Ark. 123, 30 S. W. 2d 830, we said:

‘ ‘ The practice in such cases has been defined in numerous decisions of this court. It is to this effect. "When testimony in the nature of a confession is offered, the accused has the right to object to its admission, upon the ground that the alleged confession was not voluntarily made, in which event the trial court should hear testimony as to the circumstances under which the alleged confession was made, and should exclude the confession if it was not voluntarily made. If the testimony is conflicting on that question, the jury should be told to disregard the alleged confession unless they found that it was, in fact, voluntarily made, hut, if it appeared to have been voluntarily made, to consider it in connection with all the other evidence in the case.

"No such request was made, nor were any instructions asked upon that question. Statements in the nature of a confession are not to be excluded for the reason only that they were made to an officer having the accused in custody, and, if Long voluntarily made these statements to, or in the presence of, the witness Hendricks, there is no reason why he should not have been allowed to testify concerning them.”

Let it be remembered that there is no assertion that any statements were obtained by duress, threats, or promises. While it is true that the burden is on the state to establish the voluntariness of a confession or incriminating admissions, the record reflects that the sheriff told Harris (as well as Trotter) that he did not have to make any statements, and informed him of his constitutional rights. This fact stands undisputed.

It is alleged that Harris was denied his constitutional rights in that he was aroused from bed between 3:00 and 4:00 o’clock in the morning, questioned while partly undressed, arrested without a warrant, and not taken immediately before a magistrate. It is uncontradicted that Harris’ wife permitted the officers to enter the apartment, and no objection was offered to their presence during the investigation. Under our statutes, Harris’ wife could not be called by the state to corroborate the invited entrance, but she could have been called by Harris to refute the proposition. Certainly, there was ho occasion for the officers to wait until the daylight hours of the morning before questioning and arresting Harris, inasmuch as they had sufficient information to form a reasonable belief that he might well be a participant in the crime that had been committed. Ark. Stat. Ann. § 43-403 (1947) provides that a peace officer may make an arrest without a warrant where he has reasonable grounds for believing that the person arrested has committed a felony. The fact that one arrested is not taken immediately before a magistrate does not, of itself, invalidate a confession. State v. Browning, 206 Ark. 791, 178 S. W. 2d 77. Actually, it does not appear that the matters herein mentioned were objected to by appellant at the time. Counsel did object on the basis that the testimony was inadmissible as to Trotter, and, as mentioned, the court so instructed the jury. Counsel subsequently, objected when it was indicated that the prosecuting attorney would interrogate the sheriff about statements made by tlie prisoners as they were being returned from tlie penitentiary for trial. However, this objection did not go to the question of whether the statements were made voluntarily, and, moreover, the state proceeded no further with the interrogation. We find no merit in this contention.

The Question as to the Appointment of One Attorney to Represent Both Appellants. Finally,'it is urged that the court committed error in appointing only one attorney to represent both appellants. At the outset, it should be pointed out that no suggestion of prejudice to the rights of either appellant, because of this fact, was mentioned before or during the trial. This argument appears for the first time in Harris’ motion for new trial. In general, where the interests of defendants are conflicting, or the duties of counsel are found to be conflicting in representing more than one defendant, it has been held that there is a deprivement of the constitutional right to the effective assistance of legal counsel. There are numerous cases on this subject, but all are finally determined on the basis of the rule stated. For instance, in Glasser v. United States, 315 U. S. 60, Glasser had retained counsel named Stewart. An attorney named McDonnel was appointed for Glasser’s co-defendant, a man named Kretske. Subsequently, McDonnel informed the court that Kretske did not wish to be represented by him. The court suggested that perhaps Stewart could act as Kretske’s attorney. The defendant, Glasser, objected, stating, “I would like to have my own lawyer representing me.” A colloquy then insued between the court, McDonnel and Kretske, and Kretske advised that he had just spoken to Stewart, and that Stewart had said that he would accept the appointment. Glasser remained silent. It developed that a conflict of interest did appeal1, and Glasser, on appeal, pointed out that certain testimony, inadmissible as to him, was allowed without objection by Stewart on his behalf, because of Stewart’s desire to avoid prejudice to Kretske. The judgment was reversed. On the other hand, in Farris v. Hunter, 144 F. 2d 63, appellant charged that he was represented by counsel, appointed by the court, who also represented his co-defendant, and he stated that he had protested, contending there was a divergence of interest between the co-defendants, which rendered the same attorney incompetent to represent the two of them. The Circuit Court of Appeals for the Tenth Circuit, after obtaining a transcript of the testimonjr bearing upon this point, stated:

“In the light of the seriousness of this charge, we held the case in abeyance until a transcript of the testimony bearing upon this point in the court below could be transcribed and certified here for our consideration. From the record now before us, it is clear that the appellant did not contend in the trial court that he protested the appointment of Roberts’ attorney to also represent him, and that he did not point out or call attention to any conflict or divergence of interest between the co-defendants. Furthermore, there is nothing in the record from which it can be inferred that the representation of the co-defendants by the same counsel resulted in any embarassment to the attorney or prejudice to his clients.”

In Peek v. United States, 321 F. 2d 934, Peek contended that a conflict of interest existed between appellant and Susanna Peek, which prevented their joint trial counsel from giving to either his undivided loyalty. Peek was charged with robbery and conversion, and Susanna Peek, with conversion. In deciding adversely to this contention, the court held that the interests of appellant and Susanna were not in conflict with each other, and Peek had not been denied his right to counsel. In Lott v. United States, 218 F. 2d 675, the same argument was advanced. The court said,

“Upon submission, counsel for appellants raised as alleged fundamental error the fact that the court appointed the same counsel to represent defendants Reed, Pearce and Shaw, citing Glasser v. United States, 315 U. S. 60, 68-76, 62 S. Ct. 457, 86 L. Ed. 680. That case held that Glasser was deprived of his right, under the Sixth Amendment, to the assistance of counsel where the court, over objection, required his counsel to represent a co-defendant, with notice that their interests might be in conflict. Here there was neither objection, claim, nor notice to the court of any alleged conflict between the interests of the three defendants. We hold, therefore, that there was no denial of their constitutional right to the effective assistance of counsel.”

In Case v. State of North Carolina, 315 F. 2 743, Case and a co-defendant, Shedd, were indicted and tried jointly for the offense of rape. Both were found guilty, the jury recommending life imprisonment for Shedd, but making no such recommendation with regard to Case. This meant, for the latter, that a death penalty was mandatory. The same attorney represented both men, though Shedd’s family obtained additional counsel. When the trial commenced, counsel for Case moved for severance, stating that he represented both defendants, and that he was fairly certain that a conflict would arise between their interests. This motion was overruled. On appeal, the court (IT.S.C.A. Fourth Circuit) reversed, finding that this conflict of interest was present at every stage of the trial. It is pointed out in the opinion that counsel sat silent while Shedd’s confession was read, such confession not only implicating Case, but indicating that Case was the leader in the crime. In U. S. v. Bentvena, 319 F. 2d 916, three appellants, all represented by the same attorney, raised this same point. The argument was rejected, the court commenting that an appellant “must show some conflict of interest between himself and the other defendants represented by his attorney before he can claim successfully that the joint representation deprived him of his right to counsel.” A long list of cases to the same effect is then cited. Actually, it appears that each case must be determined on its own particular facts.

In the case before ns, as previously stated, there was no suggestion to the court that adequate representation could not be afforded by the single attorney appointed to represent the defendants. After the state rested, counsel took the appellants into chambers as a matter of making a record that the decision to testify, or not to testify, was being determined by the appellants themselves. Counsel discussed with defendants this question, and recommended, for reasons appearing in the record, that they not testify, but the decision was left tó Trotter and Harris. During this discussion, both appellants expressed their approval of counsel, and his efforts, during the trial.

We find no conflict of interest. Both men were charged with the same offense, which grew out of the same occurrence. The only evidence, which in any manner could be said to indicate a conflict of interest, ivas the statement of Harris made to the sheriff that, though he drove the car, he did not actually rape the prosecuting witness. This might indicate that he was only an accessory, but the distinction between principals and accessories was abolished in this state in 1936. See Ark. Stat. Ann. § 41-118 (1947). Accordingly, even under this statement, if Harris were guilty, he was guilty as a principal. When this testimony was offered, counsel immediately asked the court to instruct the jury that this evidence could not be considered in the case against Trotter. This action by counsel was vastly different from Case and Glasser, where counsel sat silent while evidence from one co-defendant strongly implicated the other defendant. It will also be observed that in Case, Shedd (whose confession had placed the chief blame on Case) received a lesser sentence than Case, indicating that this evidence had operated to his advantage, and to the disadvantage of his co-defendant. Here, both men received the same sentence.

For that matter, Harris does not argue that there was a conflict of interest; rather, it is only asserted that appointed counsel did not have time to investigate the background of both defendants. Counsel for Harris states that his client had been discharged from the United States Navy because of epilepsy, and, at the hearing on the motion for new trial, offered an exhibit relative to Harris’ medical history while in the Navy. It is also alleged that Harris was at the Fort Eoots Hospital for about a day. These allegations, and evidence offered, are an apparent attempt to show insanity. It must be remembered that both appellants were sent to the State Hospital for psychiatric examination, and the hospital submitted a report, heretofore referred to, but at any rate, the issue of insanity should have been raised, and the plea interposed, before, or during, the trial, in accordance with the statute. See Ark. Stat. Ann. § 43-1301 (Supp. 1963).

Various other assignments of error are mentioned in the motion for new trial, relating to instructions, a motion on behalf of appellants for closed trial, and other miscellaneous objections. Because of the length of this opinion, we will not specifically discuss these alleged errors, but all have been examined, and we find no prejudicial error.

Affirmed.

       At the time of the criminal assaults, the attackers had pulled .down her undergarments.

       This word is used in conformity with the statute. The Superintendent of the hospital stated as to Harris, “however, he does have syphilis and treatment will need to be continued, for a total of twenty days. For the past seven days he has been receiving 600,000 units Procaine Penicillin G. intramuscularly daily and this should be continued for thirteen more days after Apj !1 2nd.”

       Trotter does not include this point as grounds for reversal.

       At the trial, the prosecuting witness identified the ladies’ wrist watch and red billfold as her property.

       The captain stated that he was unable to make identification of the other bullet due to its battered condition.

       The record does not reveal the position of any of the names on the panel.

       In this case the court said: “In York v. State, 91 Ark. 582, a felony case, where the trial court had, without sufficient legal grounds, excused five jurors from the regular panel, and caused bystanders to be summoned to take their places, the defendant accepted the jury without exhausting his challenges, and this court ruled that the error of the trial court was not prejudicial. Quoting from a previous decision, this court held that an accused has the right to the service of no particular juror, and that ‘when he has voluntarily taken his chance of acquittal at the hands of jurors whom he might have rejected, he must abide the issue.’ Mabry v. State, 50 Ark. 492. We perceive no sound reason why the same rule should not prevail in capital cases.”

       Here the defendant moved that the panel be discharged because all of the members resided in or near Pine Bluff, where the trial occurred, and appellant insisted that he could not obtain a fair trial in that city. The motion was denied, and Morgan asserted in this court that the overruling of the motion constituted error. Among other reasons for finding appellant’s argument to be of no avail, this court pointed out that he did not exhaust the peremptory challenges allowed him by law in impanelling the jury.

      Our emphasis.

       Only electors are eligible to serve on a petit jury. Ark. Stat. Ann. § 39-208 (Repl. 1962). To qualify as an elector, one must, inter alia, pay a poll tax. Amend. 8, Art. 3, § 1, Ark. Const, of 1874. This case was tried before ratification of the 24th Amendment to the Federal Constitution.

         The situation here is vastly different from that in Reece v. State of Georgia, 76 S. Ct. 167, where only six names of Negroes appeared out of five hundred and thirty-four names on the grand jury list, and one lived outside the county, two were over 80 years of age, one was partially deaf, and one was in poor health. In the instant case, one juror, 66 years of age, was excused because of illness.

       The court properly and fully instructed the jury in this regard.

       In capital cases, exceptions to an adverse ruling need not be noted, but it is still necessary that an objection be made. Fields v. State, 235 Ark. 986, 363 S. W. 2d 905.

       “The defendants specifically object to the testimony of the Sheriff regarding- any statements made to him by the defendants, Trotter and Harris, for the reason that they had not been carried before a magistrate or charged with any crime, that making said statements while in custody without the benefit of counsel was in violation of their rights under Fifth Amendment and they had no way of knowing that said statements could be used to incriminate them.”

       This procedure was commended in Nail v. State, 231 Ark. 70, 328 S. W. 2d 836.


author: Ed. F. McFaddin, Associate Justice.

text:
    Commercial Standard Ins. Co. v. Moore.
    5-3210
    376 S. W. 2d 675
    Opinion delivered March 23, 1964.

      Moses, McClellan, Arnold, Owen $ McDermott, By Wayne M. Owen, for appellant.

      Spitzberg, Bonner, Mitchell S Hays, By Henry E. Spitzberg and Allan W. Horne, for appellee.
   Ed. F. McFaddin, Associate Justice.

This litigation involves the liability of appellant on a title insurance policy. The appellees, James R. Moore and Marie L. Moore, his wife, filed this action against the appellant, Commercial Standard Insurance Company (hereinafter called “Commercial”), to recover for loss or damage sustained by the Moores. The complaint alleged that Commercial had issued to the Moores a policy of title insurance to protect the Moores against loss, inter alia, from materialmen’s and mechanics’ liens, that Commercial had failed to protect the Moores, who had been required to pay the sum of $8,066.40, for which recovery was sought, along with penalty and attorney’s fees. The defenses of Commercial were, inter alia: (a) that the policy originally issued to the Moores did not protect them against materialmen’s and mechanics’ liens; and (b) that the agent of Commercial had neither the power nor the authority to change the policy, as was done. The cause was tried to a jury and resulted in a verdict and judgment for the Moores; and on this appeal Commercial urges these four points:

“I. At the conclusion of all of this evidence, the Court should have directed a verdict for the defendant.

“II. When Commercial Standard Insurance Company, through Beach Abstract & Guaranty Company, issued the policy of title insurance sued on herein, the pertinent parts of paragraph 6 of the policy sued on were in full force and effect, the same being: ‘VI. Nothing contained in this policy shall he construed as insuring * 8 !* (6) against loss or damage by reason of mechanics’ or materialmen’s liens, liens of contractors, subcontractors, or other liens arising out of the construction or repair of buildings and improvements on tbe property, the title to which is hereby insured, not filed of record at the effective date of this policy * * *’ and no suit or other action was ever brought to make noneffective this writing, and it could not be reformed in a court of law.

“III. Beach Abstract & Guaranty Company was without authority to alter paragraph VI of the policy sued on in any manner and even had it been authorized, an alteration after the loss had occurred would not be effective for lack of consideration.

“IV. The Court erred in giving over the general and specific objections of the appellant, appellees’ Instruction No.- 1.”

I. Appellant’s Motion For Directed Verdict. This necessarily involves a recital of the salient evidence. In October 1961 the Moores were buying a lot, in a new addition to Little Rock, on which a house was in the course of construction. The Moores employed Mr. Homer Tanner as their attorney to examine the abstract of the property. When he learned that construction was in progress, Mr. Tanner advised the Moores that only by a title insurance policy could they obtain full and safe protection against the possibility of materialmen’s and mechanics’ liens. At the Moore’s request Mr. Tanner called Beach Abstract & Guaranty Company (hereinafter called “Beach”) in Little Rock and explained the situation of the. Moores to Mr. Cathey of Beach and inquired whether Beach would write a policy of title insurance to protect the Moores against the possibility of material-men’s and mechanics’ liens attaching to the property they were buying. Mr. Cathey answered in the affirmative, and Tanner told the Moores to deal with Mr. Cathey of Beach in closing the matter. After Mr. Tanner furnished his title opinion and the above information, his services were completed. The Moores subsequently closed the transaction through Beach by paying the balance in full for the purchase price and by receiving from Mr. Cathey a policy of title insurance furnished by Beach as agent of Commercial and dated November 22, 1961.

Some time in January 1962 the Moores were served with notice of materialmen’s and mechanics’ liens. They took these notices to Mr. Tanner, and he called Mr. Cathey at Beach’s office and informed him of the lien notices. At that time Mr. Cathey informed Mr. Tanner that the policy as issued did not protect the Moores against materialmen’s and mechanics’ liens. Whereupon Mr. Tanner and the Moores went to the Beach office and laid the full facts before the President of that company. They exhibited the policy that Commercial had issued; and Section 6 of that policy provided, inter alia: “Nothing contained m this policy shall be construed as insuring * * * (6) against loss or damage by reason of mechanics’ or materialmen’s liens, liens of contractors, sub-contractors, or other liens arising out of the construction or repair of buildings and improvements on the property, the title to which is hereby insured, not filed of record at the effective date of this policy.” When Mr. Tanner explained the full situation to the President of Beach and told him that the main purpose for the Moores taking the title insurance was to obtain protection against materialmen’s and mechanics’ liens, the President of .Beach directed Mr. Cathey to strike from the policy the above quoted and italicized language. This was done and initialed by Mr. Cathey.

Notwithstanding all the above, Commercial refused to protect the Moores against materialmen’s and mechanics ’ liens and they were compelled to pay the amount that they sued for herein. There was evidence from which the jury could have found—as it evidently did— that Beach was the general agent of Commercial; and there was evidence that Commercial did issue title insurance policies that would protect against material-men’s and mechanics’ liens. We will discuss later the authority of Beach as general agent; but under the evidence as we have detailed it in the light most favorable to support the verdict, as is our rule, we conclude that a case was made for the jury and the Court was correct in refusing to direct a verdict for Commercial.

II. Necessity Of Reformation In A Court Of Equity. In its second point Commercial urges that the policy as originally issued contained the provision previously quoted to the effect that there was no insurance against materialmen’s and mechanics’ liens; and that the Moores could not sue on the policy in a court of law until they first had it reformed by a court of equity. We find no merit in this contention because the parties could modify and change the contract between themselves, and if Beach was the general agent of Commercial (as we will discuss in Topic III, infra), then Beach had authority to make the contract state what the parties originally agreed upon. In Mason v. Jarrett, 218 Ark. 147, 234 S. W. 2d 771, we held that parties could voluntarily reform their contracts, saying: ‘ ‘ Certainly the parties may do voluntarily that which a court of equity would have compelled them to do.” In 29 Am. Jur. p. 701, “Insurance” § 337, the holdings are summarized: “In the absence of statutory or contract provisions, or of restrictions upon the power known to the insured, a general agent or agent having power to enter into contract of insurance in behalf of the insurer has authority to modify, with the consent of the insured, contracts already in existence. An agent authorized to make contracts of insurance may, at any time during the continuation of his agency, even though subsequent to the loss, correct a policy issued by him to conform to the agreement of the parties.”

Thus, when Mr. Tanner and the Moores went to the President of Beach in January 1962 and explained the situation, the President of Beach reformed the policy to make it speak the truth in accordance with the conversation between Cathey and Tanner, which was the beginning of the dealings of the Moores with Commercial. The original policy is in the transcript before ns, and the clause that we have previously copied is deleted and initialed. That was full reformation. There was no necessity for the Moores to go into equity to get the policy reformed because it was already reformed.

III. The General Agency Of Beach. This is the main issue in this lawsuit. If Beach was the general agent of Commercial, then of course the reformation of the policy was validly accomplished. Arkansas is one of the States that makes the distinction between the authority of general agents and special agents of insurance companies; and we hold that a general agent is one who has authority to transact all business of the company of a particular kind and whose powers are prima facie coextensive to the business entrusted to his care. Phoenix Assurance v. Boyette, 77 Ark. 41, 90 S. W. 284; Preserve Loan Life Ins. Co. v. Compton, 190 Ark. 1039, 82 S. W. 2d 537; and Dixie Life Ins. Co. v. Hamm, 233 Ark. 320, 344 S. W. 2d 601. See also 29 Am. Jur. p. 550, “Insurance” § 151. In Phoenix Assurance Co. v. Boyette, supra, we said of the insurance agent there involved:

“But it is urged that the authority of the agent' was limited, and he was not authorized to issue a policy such as is claimed this should have been. This view is not sustained by the facts. Bridewell, as agent for the company, kept policies for execution and delivery, passed upon applications, received premiums, counter-signed and issued policies, and was therefore a general agent for such purposes. Having the conceded power to' issue a policy on all the cotton in the warehouse, he undoubtedly had the authority to issue a policy on any portion of it. Insurance Co. v. Brodie, 52 Ark. 11; Phoenix Insurance Co. v. Public Parks Amusement Co., 63 Ark. 187; German-American Insurance Co. v. Humphreys, 62 Ark. 348.”

In Dixie Life Ins. Co. v. Hamm, supra, we quoted with approval from American Jurisprudence:

“ ‘Broadly speaking, one must be regarded as the general agent of an insurance company if he is authorized to accept risks, to agree upon and settle the terms of insurance, and to carry them into effect by issuing and renewing policies. Accordingly, agents have been regarded as general agents where they fully represent the insurance company in a particular district and are authorized to solicit insurance, receive money and premiums, issue and renew policies, appoint subagents, and adjust losses.’ ”

In the case at bar it was shown that Commercial furnished policies to Beach; that one form would insure against materialmen’s and mechanics’ liens and another form would not; that Beach was authorized to accept risks as it saw fit and to agree upon and settle the terms of the insurance, using either form, as Beach thought appropriate; and that Beach signed and issued policies and collected the premiums. The words, “State Agent,” as applicable to Beach, were printed on the Commercial binders issued to the Moores in this case; and the contract between Commercial and Beach introduced in evidence herein says that Commercial appoints Beach “its exclusive general agent for the State of Arkansas, with the exception of Miller County, which will be non-exclusive, with authority to receive applications for title insurance upon all lands situated in the State of Arkansas, to issue reports on the condition of titles to land described in such applications, to receive and collect such premiums for title insurance and such abstract and/or ■attorney’s fees as are necessarily incident thereto, to counter-sign and deliver policies of title insurance and to nominate sub-agents for approval of first party;...”

In the light of all of the above, the Trial Court certainly committed no error against Commercial in submitting to the jury the question of whether Beach was the general agent of Commercial; and the jury verdict on this point is supported by abundant evidence. With Beach the general agent of Commercial we have the answer to the questions previously discussed.

IV. Appellee’s Instruction No. 1. This was an instruction on the apparent scope of authority of Beach as the agent of Commercial. The instruction is lengthy and no useful purpose would be served by copying it here. It is sufficient to say that we find no error in this instruction as against the objections made by the appellant.

Affirmed.

        Reddell v. Norton, 225 Ark. 643, 285 S. W. 2d 328.


author: George Eose Smith, J.

text:
    Muldrew v. Dodson.
    5-3237
    376 S. W. 2d 672
    Opinion delivered March 23, 1964.

      T. S. Lovett, Jr. and Leffel Gentry, for appellant.

      Pope, Pratt & Shamburger, Donald S. Ryan, for appellee.
   George Eose Smith, J.

On March 19, 1947, James Collier died testate in Pulaski County. His will left the bulk of his estate to two of his children, Nathaniel and Eosetta, with bequests of one dollar each to eight other children. The will was promptly filed in the office of the county and probate clerk, but for some reason no order admitting the instrument to probate was entered. The matter lay dormant until 1963, when the appellant, as the guárdian and next friend of Nathaniel, the only surviving principal beneficiary, filed a petition for the probate of the will. This appeal is from an order holding that the attempt to probate the instrument is barred by limitations.

The appellant testified that after Collier’s death she took the will to the clerk’s office. At a deputy clerk’s suggestion she employed an attorney, who filed the will and also prepared and filed the necessary proof of execution by the attesting witnesses to the will.

Under the statute then in force it was the duty of the probate clerk to proceed with the probate of the will. “When any will shall be exhibited for probate, the court of probate, or clerk thereof in vacation, in person or by his deputy, may and shall receive the probate thereof in common form, and shall grant a certificate of probate, or, if the will be rejected, shall grant a certificate of rejection; but such action by such clerk or deputy, in vacation, shall be subject to the confirmation or rejection of the court.” Ark. Stat. Ann. § 60-209 (1947). It was then the usual practice for the clerk to attend to the entry of the order of probate, in harmony with the directive that he “may and shall” receive the probate of the will in common form. Hence the oversight in this instance was at least partly chargeable to the clerk.

There was formerly no limitation upon the time within which a will might be offered'for probate. Hudson v. Hudson, 219 Ark. 211, 242 S. W. 2d 154. The Probate Code, however, provides that no will shall be admitted to probate unless application therefor is made to the court within five years from the death of the decedent. Ark. Stat. Ann. § 62-2125 (Supp. 1963). The appellees now insist that the five-year statute began to run upon the adoption of the Code in 1949, so that the attempted probate in 1963 came too late.

We are not in sympathy with this contention. The Probate Code took effect on July 1, 1949, “except that when its application . . . would work injustice in particular proceedings then pending, the former procedure shall apply.” Ark. Stat. Ann. § 62-2002 (Supp. 1963). This ease falls within the exception. The appellant and her attorney had taken the necessary steps to offer the will for probate in common form under the law as it existed in 1947. It would be unjust to apply the five-year limitation in this instance, not only because a public officer was at fault in the matter but also because, in a doubtful situation, we prefer to give effect to the testator’s intention by upholding the will.

Reversed.