text:
    Jim JOHNSON and Maurice SANFORD v. STATE of Arkansas
    5499
    463 S. W. 2d 400
    Opinion delivered February 8, 1971
    [Rehearing denied March 15, 1971.]

      E. V. Trimble, for appellants.

      Joe Purcell, Attorney General; Mike Wilson, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

Jim Johnson and Maurice Sanford, two young Negro males 19 and 17 years of age respectively, were convicted of first degree rape in the St. Francis County Circuit Court and were sentenced to life imprisonment. Through an attorney, other than the one who represented them at the trial, they appeal to this court in forma pauperis. The sufficiency of the evidence to sustain the convictions is not questioned on this appeal so the sordid details will not be set out.

The points on which the appellants rely for reversal are stated as follows:

“1. Members of. petitioners’ race were intentionally deliberately and systematically limited in the selection of petit jury panels.
2. Petitioners are Negroes and members of their race were deliberately and intentionally discriminated against in the selection of petit jury panels.
3. Jury commissioners allowed race to be considered as a factor in the selection of the petit jury panels.
4. The jury commissioners made no special effort to acquaint themselves with Negroes who were qualified for jury service.”

The appellants’ brief simply contains mimeographed copies of 23 pages of the pleadings, motions and orders, and one page designated “Brief and Argument.” Aside from the mere citations of 11 federal cases, including Jackson v. Denno, 378 U. S. 368, 12 L. Ed. 2d 908, and Escobedo v. Illinois, 378 U. S. 478, the appellants’ entire brief and argument is as follows:

"It is the contention o£ the appellants that their case should have been transferred to some other judicial district because of the race riot that was taken place in Forrest City, Arkansas, on and during the date of August 23, 1969, and is further contention that the Honorable Elmo Taylor, Circuit Judge of said district should have taken judicial knowledge of the conditions then existing in Forrest City and should have on its own motion granted a change of venue.
The Eighth Circuit of Appeals has found in the previous case of Stewart v. State of Arkansas, that members of the Negro race were deliberately and intentionally limited and excluded in the selection of petit jurors for the Circuit Court in violation of the Federal Constitution. It is the opinion of the petitioners that the same factual findings in Stewart v. State are identical with those in this case.
The following cases are in point: [list of 11 federal court decisions].
It is the defendants’ contention that they were denied their Constitutional Rights to a fair and impartial trial when the State denied them a change of venue and a right to a fair proportion of black jurors.”

No motion for a change of venue is shown in the record and the appellants have totally failed to sustain their burden of demonstrating error on the assignments they allege.

Mrs. Dorothy C. Barnard, the county and probate clerk of St. Francis County, was called by the appellants as a witness on their motion to quash the jury panel. She testified that she had served as county and probate court clerk for nine years; that she has charge of the registration of voters in St. Francis County; that the voter registration act makes no provision for designation of race, and that no such designation is made in her office. She testified that there is no way of knowing what percentage of white and black people are registered to vote, but that she would guess it to be close to 50-50. She testified that she believes the number of registered voters in St. Francis County on January 1, 1969, was 13,133.

Cecil McFall, the circuit clerk of St. Francis County, testified that he is past 60 years of age and has lived in St. Francis County all his life; that as circuit clerk of St. Francis County he has charge of the jury list and the calling of the jury when the court is in session; that for the October, 1969, term of circuit court there were 36 jurors on the regular panel and that eight of them were black. He testified that one of the Negro members failed to appear in answer to summons. He testified that by looking at the special panel list of jurors selected prior to the present panel, he could not say how many were white and how many were black.

It was stipulated between the prosecuting attorney and the attorney for the appellants that statistical records as to jury composition which had ben accepted and used in evidence by stipulation in some other recent criminal cases in the St. Francis Circuit and federal court, could be made a part of the record in the case at bar, but these statistics do not appear in the record before us.

The following colloquy between the attorneys and the court, which does appear in the record, may partially explain the absence from this record of the statistical material referred to:

“MR. LONG: In addition to having the numbers on the panel, the numbers of black and white people on the panel, we had a piece of paper on each man to show whether or not he was college-educated, what his occupation was, how much money he made, how old he was, to see if the panel did represent a cross-section of the community.
THE COURT: The motions in those cases were very similar to the one that is made in this case.
MR. BUTLER, and the Court overruled, this Court did, overruled those motions. This Court, of course, for the purpose of this mo don, can take judicial knowledge of its own acts, and this Court remembered having instructed this jury commission that selected this panel to absolutely disregard race, creed, or color, ana to not put anybody on the jury panels because they were a certain color, or because they were of a certain religion, or sect, because they were affiliated with a certain political party, but for them to be very careful in the selection of the people they selected, in that we wanted people who were capable of making good jurors, and that is all we were interested in. We were not interested in their station in life, whether or not they were employer or employee, whether or not they were farmer or merchant, or any of those things, and that they were to absolutely disregard all of them, and on that basis, and on the theory which this Court believes to be the law, that it is not necessary that each ethnic group in America be represented on the juries on a proportionate basis. The Court overruled those motions, and the action of this Court was, I would say, confirmed, because the holding of the Federal Court at the hearing on the same motion, on the same evidence, was that the jury was constitutionally composed, and that should do it.
MR. BUTLER: I would like to make it clear that, with permission from the Court, we can put into the record, which we do not have here today, but we can put in the record the statistics that were stipulated to between the Prosecuting Attorney and Mr. Lavey and Kaplin in regard to the proportion of the races, and the economic conditions, et cetera, of jurors of this panel in the hearing before Judge Oren Harris.
MR. HENRY: We stipulate to that.”

It would appear that the defendants waived their right to include in the record here, the statistical data on jury selection that had been stipulated as accurate and presented in evidence on motion to quash the jury panel in other cases in which the courts found that the jury was constitutionally selected and composed.

The voir dire examination of the jurors who sat in the trial of the appellants does not appear in the record, but apparently, after the jury was selected, the appellants’ attorney orally renewed his motion to quash the panel because the prosecuting attorney had methodically exercised peremptory challenges in the removal of Negroes from the jury. The prosecuting attorney responded to the motion as follows:

“Your Honor, the prosecution has not exercised any of its challenges purely on race. We have challenged three Negroes and four white people, and the challenges were not based on race.”

The appellants say that the same factual findings in the Eighth Circuit Court of Appeals in “Stewart v. State of Arkansas” are identical with those in the case at bar. We assume that the appellants refer to Henslee v. Stewart, 311 F. 2d 691. That case arose from Pulaski County and the Eighth Circuit Court of Appeals affirmed the district court in holding that “a prima facie case of limitation on members of the Negro race in the selection of this defendant’s petit jury panel was established and that the state did not rebut it.” In reaching its decision in the Stewart case, the Eighth Circuit Court of Appeals, quoting from Bailey v. Henslee, 287 F. 2d 936, said:

“ ‘Here there appears to be a definite pattern of race selection; here there is a device for race identification with its possibility of abuse; here there is exclusion from the alternate panels * * #; here there is an element of recurrence of the same Negro names; and here there is the additional factor, for what atmosphere it may provide, of exclusion from the civil divisions’ panels.’ ”

None of the elements shown in Bailey or Stewart, supra, are shown in the case at bar. But even so, the Eighth Circuit Court decision, supra, is not all of the Stewart case. Stewart’s first conviction was affirmed by this court in Stewart v. State, 233 Ark. 458, 345 S. W. 2d 472, and the district court, on a petition for habeas corpus, found that Stewart had made a prima facie case in denial of his constitutional rights because of systematic and arbitrary exclusion of Negroes from the petit jury. The decision of the district court was affirmed by the Eighth Circuit Court of Appeals, Stewart v. Henslee, 311 F. 2d 691, supra, and certiorari was denied December 4, 1961, by the U. S. Supreme Court, Stewart v. State, 379 U. S. 935, 85 S. Ct. 336, 13 L. Ed. 2d 345.

Stewart was retried in the Pulaski County Circuit Court, he was again convicted and his conviction was again affirmed by this court. Stewart v. State, 237 Ark. 748, 375 S. W. 2d 804. On his second appeal to this court Stewart again alleged discrimination by the jury commissioners in the selection of the jury panel. In affirming the conviction we distinguished the facts in the first Stewart case from those in the second and Stewart again filed habeas corpus proceedings in the U. S. District Court where he again alleged that his constitutional rights were violated in the selection of the jury that tried him. The case was again remanded for a determination of the voluntariness of Stewart’s confession (Stewart v. Stephens, 244 F. Supp. 982), but on the issue of jury selection, the finding of the district court in the second appearance of the case expresses our own feeling in the case at bar. In Stewart v. Stephens, supra, at page 989, the district court said:

“The evidence falls far short of establishing that racial discrimination was practiced in the selection of the jury panel, as petitioner contends. This Court is convinced that his federal right to a jury selected without regard to race was fully preserved at his trial and that his argument to the contrary is without merit.”

In the case at bar the only evidence relating to the jury panel was the testimony of Mrs. Barnard that she would estimate that the races were divided about equally in the voter registration list, and the testimony of Mr. McFall that of the 36 jurors on this panel, 8 were Negroes. The voir dire testimony does not appear in the record, and we only know from the unchallenged statement of the prosecuting attorney that three of the Negro jurors on this panel were excused through peremptory challenges exercised by the state. There is no evidence in the record that the appellants exhausted their peremptory challenges at all, and there is nothing in the record to show whether the 4 or 5 Negro jurors remaining on the panel sat on the jury when the appellants were tried. There is no evidence as to whether additional jurors than those on the regular panel were called, or examined, or sat on the jury.

The judgment is affirmed.


source: Caselaw Access Project

author: Conley Byrd, Justice. John A. Fogleman, Justice,

license: Public Domain

text:
    Anderson J. WARD v. Cora H. WARD
    5-5440
    463 S. W. 2d 90
    Opinion delivered February 8, 1971

      Russell ir Hurley, for appellant.

      Jack L. Lessenberry, for appellee.
   Conley Byrd, Justice.

The issue of adultery in this divorce case between appellant Anderson J. Ward and appellee Cora H. Ward resolves itself into a swearing match between Cora and her alleged paramour on one side and Anderson and his alleged detective Tom Burke on the other side.

The proof in the record is rather cogent to show that Anderson was either having an affair with a teenage blonde or at least an infatuation. One witness described a scene in which the girl was seen sitting on his lap and kissing him. Several witnesses testified that Anderson and the blonde usually arrived together at the club where he played in a band three nights a week. They were also described as leaving together. One witness said that Anderson indicated that he was in love with the blonde and was anticipating marrying her. Anderson himself became aware of his wife’s objection to the girl friend as early as July of 1969. Notwithstanding his wife’s pleas he continued to play in the band and to keep late hours — up to 4:00 A.M.

After Cora had filed suit for divorce, Anderson employed Tom Burke to spy on his wife’s activities. Burke testified to two alleged adulterous incidents. The first occurred on December 30, 1969, in the home of the alleged paramour. The next incident, in Cora’s home on January 21, 1970, was allegedly heard over a radio transmitter secreted in Cora’s bedroom. Both Burke and Anderson testified to hearing intimate conversations over the radio and claimed to have a tape recording. However, the tape recording was inaudible when played for the court. On cross-examination Burke’s credibility was seriously impaired by his admission that he was a full time employee of one of appellant’s counsel, that he had been fined on some “hot check” and false pretense charges, but that he could not remember whether he had been so charged or convicted in the years of 1968 and 1969.

The personal indignities on the part of appellant prior to the filing of the charge of adultery are readily apparent and unless appellant has proved his charge of adultery, appellee was certainly entitled to a divorce. Appellant argues that the chancellor concluded that adultery was not in issue because not shown to have been committed before the filing of the divorce suit. If the trial court so ruled, it was in error because the adultery, if proved, would be a defense if it occurred before the filing of the counterclaim. See Northcutt v. Northcutt. 249 Ark. 228, 458 S. W. 2d 746. However, we hold that the alleged error if made is harmless for two reasons.

(1) The appellee here received no greater property rights than she would have been entitled to receive had the divorce been granted to appellant. In making this statement, we realize she was given the household furniture, but under the circumstances it makes no practical difference because if she had not been given the household furniture, the child support payments would have had to be increased to pay for other furniture.

(2) The burden of proof on the adultery issue was upon appellant. In view of the questionable credibility of appellant and his alleged detective, the evidence does not preponderate in his favor on that issue.

Appellant complains that the trial court erred in refusing to admit his tape recording of the alleged January 21st incident into evidence. Admittedly the court found the recording to be inaudible. Under such circumstances, we are at a loss to understand its relevancy and hold that the trial court was correct.

The trial court awarded the custody of the children to appellee purely upon the theory that such award was for the best welfare of the children. We find nothing in the record to reverse this award.

The last issue on which appellant complains is that the trial court declared appellee to be the fee owner of an undivided one half interest in the home. In this connection the record shows that the home was originally acquired in both names, with the down payment money coming from a loan acquired by appellee from a credit union where she then worked. When the parties were first divorced in 1965, a property settlement was entered into whereby appellee quitclaimed the property to appellant. That decree was set aside by the parties and their marital relations were resumed as before. Appellant did not in fact record his quitclaim deed until August of 1969, after his wife learned of the teenage girl friend. The only inference from the parties’ conduct is that they intended to abrogate the property settlement at the time they caused the divorce decree to be set aside. The trial court’s holding is supported by the authorities. See Sherman v. Sherman, 159 Ark. 364, 252 S. W. 27 (1923).

On cross appeal appellee contends that she should have been awarded additional child support and a greater attorney’s fee. The record here does not show that the trial court abused its discretion on either issue. However, we are allowing appellee an additional attorney’s fee of $750 for his services on this appeal together with all costs.

Affirmed.

Fogleman, J., concurs.

John A. Fogleman, Justice,

concurring. I concur in the result, not because I agree that appellant failed to meet his burden of proof, but because this marriage could never be salvaged by reconciliation, and it seems to me that the majority has properly inferred that the primary responsibility for its wrecking lies with appellant. No useful purpose would be served in further public exposure of the testimony, so I forego any discussion of the evidence pertaining to the charges against appellee. It is significant, however, that the chancellor stated that there was direct testimony as to adulterous actions after the separation and filing of the suit, but that the testimony was not sufficient to prove adultery before the separation and before the filing of the suit.

This is not a case calling for the application of the doctrine of recrimination if the parties may not be said to be equally at fault. It seems to me that we cannot say that the decree granting a divorce to appellee upon the grounds of indignities is against the preponderance of the evidence. Were it not for appellant’s conduct, it is plausible to say that there would have been no loss of love for him by appellee, no separation and no occasion for any suspicion of misconduct on her part. Thus it seems to me that this is a case for the application of the doctrine of comparative rectitude (perhaps the doctrine should be labeled comparative iniquity) against the first offender. This would affirm the decree. See Longinotti v. Longinotti, 169. Ark. 10.01, 277 S. W. 41; Ayers v. Ayers, 226 Ark. 394, 290 S. W. 2d 24. I agree with the majority opinion in other particulars.


author: Conley Byrd, Justice.

text:
    Eddie (Tate) MORRIS v. STATE of Arkansas
    5508
    462 S. W. 2d 842
    Opinion delivered February 8, 1971

      Walker, Kaplan, Lavey if Mays, for appellant.

      Joe Purcell, Attorney General; Mike Wilson, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant Eddie (Tate) Morris appeals from a sentence of seven to twenty-one years on a robbery conviction.

During some racial troubles in Forrest City on August 14, 1969, about 9:00 p.m. two Negroes, George Tabor and Jerry Porter, went to Thompson’s Grocery Store to buy bread. As they were about to enter the store they found William F. Epps, the store’s only employee at that time of day, standing in the entrance bleeding profusely from stab wounds. They ascertained that Epps was unable to call for help and when they saw the cash register open with only three pennies in it, they used their own money to call Thompson’s home and the police. Sergeant E. J. Frames of the Forrest City Police was the first officer to arrive at the scene. From information furnished by Epps, Sergeant Frames notified the police radio network that Thompson’s Store had been robbed and Mr. Epps stabbed in the robbery. Sergeant Frames described the robbers as two tall Negro males wearing dark clothes — one having a bushy head and the other a goatee.

In another part of Forrest City, Robert Lee Patterson, a Negro, was driving his car when he spotted his friend Sylvester Robinson. After some conversation Patterson agreed to drive Robinson to Memphis. At this point Robinson and his friends got into Patterson’s car and drove to Robinson’s abode at Janet Moore’s house so that Robinson could get three dollars to buy gasoline for the trip. About the time Robinson reentered Patterson’s car, the appellant, Eddie Tate, as he was then known, Johnny Harper and Peggy (Tate) Smith ran out of Janet Moore’s house, pulled Robinson’s friends out of Patterson’s car and upon entering themselves commanded Patterson to “Drive, man, drive.” When Patterson asked what was up, he was told by Peggy (Tate) Smith, “Best you don’t know.” Either Harper or appellant told Patterson that they would tell him once they got out of St. Francis County. When Patterson found out some of the details, he did not appreciate his situation. He did something to his car to cause the gas gauge to show that he was about out of gasoline. He convinced his passengers that he should stop at Palestine to get some gas. At the gas station he blinked his lights and did a few other things to attract the attendant’s attention but the attendant did not notice. The gasoline was paid for by a five dollar bill that Peggy (Tate) Smith got from under her dress. The intruders then decided that they wanted to go to Memphis by way of Interstate No. 40. Between Palestine and Forrest City, Patterson observed an unmarked State Police car driven by Sergeant William Mitchell. To attract Mitchell’s attention, Patterson drove at the State Police car and then weaved down the road as if he were drunk.

Mitchell had heard Sergeant Frames’ network broadcast of the robbery and stabbing and also the description of the alleged robbers. As a result of Patterson’s driving, Mitchell stopped Patterson to investigate him for drunk driving. At this point there is a variance between Patterson’s version of what was said and that of Mitchell. Mitchell says that when Patterson got out of his car, Patterson said, “Officer, I’m glad you stopped me. The people in my car have just robbed and killed a man in Forrest City.” Mitchell says that Patterson also told him that the occupants of the car had threatened Patterson, saying, “One more son-of-a-b. . . . wouldn’t make any difference.”

Patterson’s version, on cross-examination, was that he told Officer Mitchell, “I made that dive in the road in order for you to stop me because there’s some mens in the car I want you to get out, because something is wrong and I don’t know what it is.” When the Officer asked him if the people in the car were the ones involved in the robbery, Patterson testified that he said: “What store? I don’t know nothing about a store.” In other parts of his testimony Patterson stated that he did tell Officer Mitchell about the threat that the occupants had killed one S. B. and one more wouldn’t make any difference.

As a result of Patterson’s statements and the descriptions given by Sergeant Frames, Officer Mitchell placed Patterson and all the occupants of the car under arrest. The men and the car were searched at the scene by Officer Mitchell. A grocery sack containing some change was found on the back seat. Back at the station a policewoman searched Peggy (Tate) Smith and found $59.00 in paper money between her underclothes and her body. — According to the cash register tapes approximately $177.00 was taken in the robbery.

Appellant contends that the record shows that Negroes and poor people were systematically excluded from the jury. We do not agree. The record shows that of the panels from which the jurors who tried appellant were selected, 25% of the regular panel and 39% of the alternate panel were Negroes. The income of the jurors who tried appellant ranged from $3,600 to $12,300 per year. Other figures in the record and attached to the record show that there were 33,303 inhabitants in St. Francis County according to the 1960 census and that about the time of the trial there were as many as 6,287 people on welfare. According to the 1960 census 56.7% of the population were Negroes. A deputy clerk estimated that 46% of the qualified electorate were Negroes. While the proportion of Negroes to other races on the jury can be so disproportionately small as to cast the burden on the State to show that no discrimination was involved, we do not find the record here to be so out of line as to shift the burden to the State. This is particularly so when we consider that a jury must be picked so as not to discriminate against, not only race, but also religion, social status and employment. Finally jurors must be selected who can comprehend the ordinary vocabulary used in the court room and who are able to retain, organize and make a logical deduction from the evidence heard in the court room. Otherwise verdicts would become illogical and based more on sentiment or persuasiveness of counsel than the facts. A number of people remain on the lower end of the economic scale because of their inability to separate facts from their sentiments, then to correlate them and to make a logical deduction therefrom.

Appellant alleges that his arrest was without probable cause and thus the trial court should have granted his motion to suppress the evidence obtained in the search of Patterson’s car, the search of Peggy (Tate) Smith and State’s Exhibit No. 1, a picture taken of appellant on October 8, 1969. We agree with the trial court that Officer Mitchell had probable cause to arrest appellant.

It is also argued that the trial court erred in denying appellant’s motion to pay his attorney’s fees, in refusing to permit his attorney to withdraw as his counsel and in refusing appellant’s motion to discharge John T. Lavey as his counsel. The record here shows that before the robbery appellant had been arrested and charged with spitting on the sidewalk at the local sheriff. His present counsel, John T. Lavey, was apparently furnished to him in that proceeding by a “Committee for Peaceful Coexistence” headed up by a Reverend Cooley. Patterson testified that after they were placed in jail a person named Goodloe, a law student working in Lavey’s office, talked to them about letting a member of Lavey’s firm represent them and that was agreed to. The record further shows that when appellant filed his motion to proceed in forma pauperis and for the payment of Lavey’s fee, the trial court explained that payment of fees by the state was not allowed when the defendant retained or selected counsel but that if Mr. Lavey wished to withdraw, the court would appoint competent counsel for appellant at the expense of the state. When Mr. Lavey refused to withdraw as counsel for appellant, the trial court denied the application for counsel fees. After a number of motions were filed and overruled by the trial court, Lavey then filed a motion to withdraw as counsel for appellant because of an alleged conflict between the parties he was representing. This motion was overruled. Some few days before the trial and while hearing motions filed by Lavey, Patterson notified the court that he did not want Lavey for his counsel. At that time Lavey was permitted to withdraw as Patterson’s counsel. Finally on the day of trial appellant moved to discharge Lavey as his counsel. This motion was denied.

We can find no error of the trial court in refusing to pay counsel employed or retained by the defendant upon a forma pauperis petition — particularly under the record here made. Neither do we find any merit in the alleged error of the trial court in refusing to permit Lavey to withdraw as counsel and in refusing to discharge Lavey as counsel upon defendant’s motion. Under the record the trial court could properly have concluded that Lavey’s motion was not in good faith and that appellant’s motion was nothing more than a ruse for a continuance.

Appellant complains that the trial court erred in evicting him from the court room during the trial and in commenting to the jury about it. On this issue it is shown that after the jury was selected and appellant had told a deputy sheriff that “He was going to pull a Bobby Seales,” he created a commotion in the court room by kicking over a chair and talking to the court in some rather loud language. Thereafter the court in chambers explained to appellant that he had to abide by the ordinary rules of conduct and decency if he wished to remain in the court room during his trial. Upon appellant’s refusal to abide by the rules, the court instructed the sheriff to return appellant to jail. Returning to the court room, the judge explained to the jury that they should not consider appellant’s conduct and remarks as going to the issue of guilt because his actions and his language were not evidence of guilt. The judge also explained that the trial would proceed in the absence of appellant because appellant had informed the court that he would not abide by the rules of court.

The court did not err in removing appellant from the court room. See Illinois v. Allen, 397 U. S. 337, 25 L. Ed. 2d 353, 90 S. Ct. 1057 (1970). Furthermore we can find no error in the trial court’s comment to the jurors since they were entitled to some explanation under the circumstances.

The contention that appellant’s guilt and punishment should not have been simultaneously submitted to the jury is contrary to the authorities generally. See Bagley v. State, 247 Ark. 113, 444 S. W. 2d 567 and Maxwell v. Bishop, (8 Cir. 1968) 398 F. 2d 138.

State’s Exhibit No. 2 was a knife found just outside the door from which the robbers fled. It is true that the knife was not connected to appellant, but Epps’ testimony indicates that it fits the description of one of the knives used. Even if we should conclude that it should not have been introduced because of its immateriality, still the record here demonstrates that its introduction was harmless since the only real issue in the case was one of identity.

Under our law, the prosecution, upon apprehension of appellant as one of the alleged robbers, had the option of (1) taking him before a magistrate where upon a showing of probable cause he would be bound over to the grand jury, or (2) filing an information directly in circuit court. The prosecution elected to do the latter and appellant now complains that it deprived him of any pretrial discovery. Without conceding that the argument otherwise has merit, we point out that appellant is not in a position to complain because the prosecution furnished him with the names of all witnesses and permitted his counsel to inspect all statements in the prosecutor’s file, including the statements of appellant.

Appellant also moved to strike all of the testimony of witness Epps as to how he identified appellant from State’s Exhibit No. 1. The record shows that one key to appellant’s identity was a goatee. At trial appellant had shaved off the goatee and when Epps was testifying appellant was not in the court room. Thus it became necessary for the State to connect up the evidence concerning the goatee which it did by State’s Exhibit No. 1, a photograph of appellant taken on October 8, 1969. The evidence shows that a deputy sheriff at one time showed Epps some thirty photographs from which Epps picked State’s Exhibit No. 1 as being a picture of one of his assailants. The same procedure reoccurred later when the deputy prosecuting attorney handed Epps some thirty photographs from which Epps again selected appellant. After State’s Exhibit No. 1 had been introduced appellant was brought into the court room and Epps again and in unmistakable terms identified appellant as one of the robbers. On cross-examination counsel for appellant moved for production of the other pictures shown to Epps which the court overruled after the court learned that the officers no longer had all the pictures used. The court room identification of appellant by Epps without the aid of the picture is so convincing that, like the court in Simmons v. United States, 390 U. S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968), we are unable to say that the trial court abused its discretion in overruling the motion to produce the other pictures. But also, like the court in the Simmons case, we admonish officers everywhere that the better practice would be to make and keep a list of the photographs used in such situations.

Affirmed.


author: Frank Holt, Justice.

text:
    Johnny HARPER v. STATE of Arkansas
    5528
    462 S. W. 2d 847
    Opinion delivered February 8, 1971

      Walker, Kaplan, Lavey & Mays, for appellant.

      Joe Purcell, Attorney General; Mike Wilson, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

This is a companion case to Eddie (Tate) Morris v. State, opinion delivered this day. Although the appellant and Morris (known as Tate) were charged and tried separately for the alleged crime of robbery, the facts relating to their joint participation are identical. Since the facts are fully detailed in Morris, it is unnecessary to again relate them. A jury assessed appellant’s sentence at seven years with a minimum of two years and four months without parole in the State Penitentiary, and from a judgment on that verdict comes this appeal.

Appellant first contends for reversal that it was error when the trial court refused to permit appellant “to adduce evidence from the jury commissione s and the panel of petit jurors in support of its motion to quash the jury panel.” This motion was based upon allegations that the February 1970 venire was not a reasonable cross section of the community. We find no merit in this contention. In response to this motion the trial court offered to make available to the appellant a transcript of the court’s instructions which were given as guidelines to the jury commissioners and to permit the appellant to inquire of the jury commissioners if they had followed the court’s instructions in the selection of the master jury list (800). The court commented that it had specifically instructed the jury commissioners to “disregard race, creed, color, station in life, age and sex.” The court additionally offered that: “* * # any proof that you have in any of these things will be permitted, and if any of these errors exist that you allege here you may put in your record * * Appellant rejected these offers and persisted in his assertion that he was entitled to question the jury commissioners and the jury panel on such specifics as economic, occupational, racial, social, political, age, and geographic considerations to determine if the jury panel constituted or was representative of a reasonable cross section of the county as is constitutionally required.

The court remarked to appellant’s counsel that by looking at the list drawn at random from the jury wheel: “It is discernible * * * that the jury commission had followed the instructions of the court, and that they had selected a cross section of the different races in the county, of the different age groups, of the different people of different economic statuses. * * * [Y]ou were present when we drew the jury, and you took a list of them at that time, of this panel, so you have had ample opportunity to check that list, and I think that in checking it you will find that it is a cross section of all of these things that you have alleged here. * * * I think that is perfect evidence that the jury commission followed the instructions of this court, and that we do have a cross section, and that there was no discrimination.”

In selecting the venire for the February 1970 term the provisions of our new “jury wheel” statute were followed. Ark. Stat. Ann. § S9-201 et seq. (Supp. 1969). It appears from the record that a list of 800 was selected by the commissioners from approximately 15,000 electors in the county and that appellant’s attorney was present when 60 were drawn at random in order to get a panel of at least B6 prospective jurors, 26 of whom had never served on a jury. (Pertinent data relating to county population, the race ratio as well as the qualified electorate ratio, and the number of welfare recipients -are detailed in Morris v. State, supra.) The record here reflects that the membership of the trial jury, which convicted appellant who is an 18-year-old Negro, was selected from this panel. The trial jury consisted of an industrial worker and member of a local union; an hourly-paid employee and union member; a salaried mechanic; a salaried manager of a tire service store; a yard man; a farmer who rents 2,200 acres of land and employs six men; a retired woman school teacher; a farmer who owns and farms 200 acres of land; a salaried car salesman; a part owner of a lumber company which employs 60 workers; an hourly paid draftsman for an electronic concern; and an hourly paid truck driver.

The voir dire examination of the prospective jurors does not reflect what proportion, if any, of the jury panel was of the same race as appellant. However, as we understand the trial court, other jury panels drawn at random from this master list were biracial and one contained as many as 50% Negroes. In the selection of the trial jury the appellant was permitted to conduct an exhaustive and thorough voir dire examination of the prospective jurors which were drawn at random from the “jury wheel.” Appellant has not demonstrated that there was any discrimination in the jury selection or that he was deprived of a jury which represented a reasonable cross section of the community. His motion to quash did not entitle him to conduct a “fishing expedition”; and, in the circumstances, the court was correct in denying his motion.

The appellant insists that the court erred in overruling his objection to the State’s introducing into evidence currency totaling $59.00, a pocketknife, and a brown paper sack containing some silver. We do not agree. The victim testified that the money from his cash register was missing after the robbery and that he observed appellant “put something in” a brown paper sack after he told him how to open the cash register. A brown paper sack containing some change was found in the car when appellant and his accomplices were apprehended and, later $59.00 in currency was found hidden on the person of one of these accomplices. The knife was found on the premises just outside the door of the building where the robbery occurred and there was evidence of bloodstains on it. The victim was stabbed several times during the robbery. He observed appellant’s accomplice with a knife. The exhibits were properly admitted into evidence. Morris v. State, supra.

We find no merit in appellant’s assertion that the court erred in reading the information to the jurors and mentioning there were “other persons” involved in the alleged offense. Appellant has not demonstrated how this was prejudicial. The trial court admonished the jury, as appellant requested, not to be concerned with the results of any trial of another person.

Nor do we find error in the refusal of the trial court to give appellant’s instruction pertaining to good character. There was no evidence offered by the appellant as to his general reputation in the community. His father merely testified that his son had never been convicted of a crime and this was the first time he had ever been in trouble. This was not equivalent to evidence of general reputation in the community in which appellant resided and, therefore, was insufficient evidence to warrant such an instruction. Henson v. State, 239 Ark. 727, 393 S. W. 2d 856 (1956); State v. Williamson, 78 S. E. 2d 763 (N. C. 1953); Monk v. State, 105 Ark. 12 (1912). Appellant’s requested instruction was properly refused since it was not supported by the evidence. Powell v. State, 231 Ark. 737, 332 S. W. 2d 483 (1960).

Appellant asserts that the trial court erred by refusing to grant appellant’s motion to have his sentence run from the date he was detained, August 14, 1969, until the time of his trial. We cannot agree. See Kimble v. State, 246 Ark. 407, 438 S. W. 2d 705.

Appellant’s other contentions for reversal are decided adversely in the companion case, Morris v. State, supra.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Ashley KNIGHT v. E. C. HARDIN, Jr. and Harry D. FRATESI
    5-5431
    463 S. W. 2d 673
    Opinion delivered February 15, 1971
    [Rehearing denied March 22, 1971.]

      George Howard, Jr., for appellant.

      Odell C. Carter, for appellees.
   Carleton Harris, Chief Justice.

The question in this litigation is whether Ashley Knight, the appellant, established adverse possession of certain lands involved herein. Appellees, E. C. Hardin, Jr. and Harry D. Fratesi, instituted suit in Lincoln County Chancery Court, wherein they sought to restrain appellant from making use of a strip of land fifty feet wide at the north end, thirty-one feet wide midway, and fifty-seven feet wide at the south end, and measuring one thousand sixty-one feet in length. The aforementioned strip includes a road, some twenty feet wide, located along its western edge running from the north end some seven hundred feet southward where it ends in a circle at appellant’s house. The disputed area lies west of and is adjacent to the west boundary line of a forty acre tract of land owned by appellant. Following the filing of an answer in which the appellant denied the allegations and further asserted adverse possession of the disputed premises, the cause proceeded to trial. After the taking of testimony, the court found that appellant had failed to prove that he was entitled to any of appellee Fratesi’s land by adverse possession, and that appellant owned no land west of the true boundary line as established by the survey of Porter Coates, a witness for appellees, which line is conceded by the appellant to be the true boundary line. The court further relocated the road, placing its center line on the true boundary with ten feet on the property of each party, said road to end at the appellant’s house. Appellant was permanently restrained and enjoined from going upon the property except in using the road “as herein relocated”. From the decree so entered, Knight brings this appeal. For reversal, it is first asserted that the holding of the chancellor is contrary to the weight of the evidence, and it is next argued that the court erred in considering incompetent evidence to sustain its findings and conclusion that appellant had not established adverse possession.

E. C. Hardin, Jr. and Ashley Knight were adjoining land owners, Hardin having purchased his land in 1945, and Knight having inherited his land from his father who, according to the evidence, acquired it in 1916. Through the years a dirt road has run between the properties for a distance of seven hundred feet. This road, according to the testimony, started out as a turn-row as far back as 1921, and, beyond dispute, the road has existed since, that time; in fact, in his oral opinion, the chancellor specifically found that usage of the road as such by the public had established the right of prescription.

Appellant contends that he has established title entirely up to the east boundary of the road, and that this ownership continues as an imaginary line for a distance of three hundred sixty-one feet farther south (in effect, east of where the road would have been had it continued); the argument is based on his contention that he has farmed and claimed the aforesaid land for a period of more than seven years. Before purchasing the land from Hardin by warranty deed in February, 1970, Fratesi had a survey made by Porter Coates establishing the true line between the properties. Knight did not agree that the survey made by Coates was correct and employed his own surveyor, Gordon Thurman, to survey the property involved in this litigation. Thurman subsequently tesufied that the Coates survey was accurate, and there is no present contention but that the finding of a true line by Coates (and Thurman) was correct. Thurman also testified, that although he was not familiar with the premises prior to making a survey, there was no doubt in his mind that the road had been in its present location for a number of years. The witness testified that a 1964 aerial photograph offered by appellant (Defendant’s Exhibit 4) depicted the road as being in the same location as on the date of the survey made by Thurman, March 27, 1970. He stated that he could observe that Knight had worked the land just east of the road. The witness was then shown Defendant’s Exhibit 5 which was also an aerial photograph of the land taken on November 3, 1955. Thurman testified that the location of the road on that photograph appeared to be the same as the location at the time of his survey. The witness stated that, in testifying relative to the location of the road, he was not considering quarter section lines which had been drawn on the map in red. Several elderly residents of the community testified on behalf of appellant that the road had been in the same exact location for a long number of years, several stating that it had been there for at least as long as 25 years. Some of these witnesses also testified that Knight had worked the land south of the road down to the bayou. On behalf of appellees, one witness testified that the turnrow had definitely changed its course during the last three years, and within the last year had moved west for twenty feet. Hardin testified that he had talked with Knight about the location of the line and that the latter had replied that he didn’t know exactly where the line was but he knew that he was a little bit over on Hardin. Knight denied this conversation.

As far as the number of witnesses is concerned, appellant would appear to have the weight of the testimony on his side, but despite this testimony, photographs offered in evidence clearly show that the road has not remained in the same location, but has moved westward. By taking a transparent sheet of plastic and placing it over appellant’s exhibit 5 (this photograph being taken on November 3, 1955) and tracing landmarks which appear in both maps (two buildings and road corners), and then overlaying the plastic on appellant’s exhibit 4 (this photograph being taken on February 14, 1964), since the overlay matches perfectly at the fixed points, except for the road, it can readily be seen that such road, as shown on the last map, is farther west than the road shown on the 1955 photograph (this comparison being made without any reference to the section or quarter section lines on the maps). In other words, during the eight year period of time between the taking of the photographs, the road has moved further onto the property presently owned by Fratesi. It cannot be determined just how far this movement has extended, nor can it be more definitely determined when it took place. The maps referred to were offered by appellant, and since Mr. Thurman, appellant’s surveyor, apparently testified by simply looking at the maps from the witness stand, it is easy to understand his error.

In his testimony, when asked what he was claiming, appellant consistently answered that he was claiming “out to the road” and “all the way back”. This was the only location that Knight would designate, never mentioning any fixed point that he was claiming to, and while it is possible that there was a period of time when he could have been in a position to establish ownership of a portion of the Hardin land by adverse possession, no effort was made to do that. Since a comparison of the aerial photographs made in 1955 and 1964 shows that the road has moved, contrary to evidence presented by appellant, this would constitute a basis for the chancellor to believe appellees’ testimony that the road has even moved during the last year. Be that as it may, since it definitely appears from the overlay that the road did not remain in the same location from 1955 to 1964, and since seven years had not elapsed from 1964 until the trial of this case, appellant’s claim of adverse possession cannot prevail.

With reference to appellant’s second point, the court apparently made a comparison of the maps similar to that we have made, though without an overlay, but in expressing his conclusions, reference was made to the quarter section lines which the parties admit cannot be relied upon. Although mentioning the lines in stating his conclusions, the court did note that they were not necessarily accurate. At any rate, we have said that a chancellor’s decision will be affirmed if the record supports him as a whole even though he may have given the wrong reason for a decision. Morgan v. Downs, 245 Ark. 328, 432 S. W. 2d 454.

Of course, the testimony of the witnesses on each side was in irreconcilable conflict, but we think appel-lees’ testimony, together with the exhibits mentioned, supports the finding of the chancellor.

Affirmed.

       Fratesi purchased the land from Hardin in February, 1970, Hardin conveying by warranty deed.

       The home of appellant was not one of the permanent landmarks used for comparison since the record indicates that it was destroyed by fire and later relocated. The buildings referred to are located more than one half mile from the land claimed by Knight.

       We have held that the burden rests on an appellant to show adverse occupancy of a definite area, sufficiently described to support a verdict and where the proof merely shows an uncertain and shifting possession, it being impossible to pick out a particular portion of land which was occupied for a sufficient length of time, the plea of adverse possession must fail, Maney v. Dennison, 110 Ark. 571, 163 S. W. 783.


author: George Rose Smith, Justice.

text:
    ARKANSAS STATE HIGHWAY COMM’N v. Richard M. MAHAN et ux
    5-5451
    463 S. W. 2d 98
    Opinion delivered February 15, 1971

      Thomas B. Keys and Billy Pease, for appellant.

      Clark, Clark & Clark and Jones, Stratton & Jones, for appellees.
   George Rose Smith, Justice.

This is an action by the highway commission to condemn two strips of land lying on opposite sides of a street in Damascus and totaling sixteen hundredths of an acre. The jury fixed the landowners’ compensation at $12,900. In the view we take we need consider only two of the appellant’s three points for reversal.

First, the landowners subpoenaed two witnesses, Gray and Sandlin, but did not use them at the trial. On the day before the case was tried an attorney of record for the highway department filed a motion, as attorney for Gray, asking that the subpoena directed to Gray be quashed. The motion asserted that Gray had not been tendered witness fees or mileage and that he had been subpoenaed by the same attorneys in two earlier condemnation cases without having been called to the witness stand in either case. The trial court’s action in overruling the motion to quash the subpoena is now assigned as error.

We do not see how the highway commission is in a position to question the court’s ruling. There is no indication in the abstracts and briefs that Gray has any connection with the highway department. Thus ■ the appellant is in the attitude of complaining about the landowners’ failure to tender witness fees and mileage to their own witness, an apparent stranger to the department. No doubt the department might properly object to being charged with costs incurred by the landowners in unnecessarily bringing in witnesses who were not used at the trial, but we find no basis for the preliminary motion to quash the subpoena.

Secondly, the appellant contends that the landowners’ expert witness, Lloyd Pearce, should not have been permitted to testify about the reproduction cost, less depreciation, of a building that would be so close to the highway after the taking as to be no longer usable as a filling station.

That issue arose in this way: Pearce first explained to the jury that the three accepted methods of property valuation are comparable sales, capitalization of income, and reproduction cost less depreciation. Pearce had been unable to find any recent sales of comparable property in Damascus. Resorting to the other two methods of valuation, Pearce discussed the landowners’ rental income from the property and arrived at a capitalized value which fixed the landowners’ compensable damages at $12,900. Pearce then stated, in effect, that he had also used the cost-minus-depreciation method and had reached the same amount of compensable damages.

Pearce had qualified as a real estate appraiser, not as an engineer, architect, or builder. On cross examination he admitted that he was not a builder and did not know the cost of construction materials, such as building stone and concrete blocks, that would be required to reproduce the filling station at its site in Damascus. Instead, Pearce had estimated the reproduction cost of the building at $8.00 a square foot, less 50% depreciation. Pearce stated that “I keep up with building costs through the use of Marshall Field Cost, Dodge Construction Estimates, and Dow Building Cost Estimates, and also Beck Building Cost Estimates.” He readily admitted that building costs vary from one locality to another.

We agree with the appellant’s contention that its motion to strike Pearce’s cost-Iess-depreciation testimony should have been granted. We recognize, of course, that a real estate dealer or appraiser who values property by the use of comparable sales need not know the cost of materials making up the building. Without that detailed information he is nevertheless ordinarily in a position to make a sound estimate of what the property as a whole would sell for in the open market.

Such information, however, does not qualify him as an expert in the matter of building costs. Nichols points out that evidence of reproduction costs, through admissible in most jurisdictions, should be received with caution, “because the reproduction cost of a structure sets an absolute ceiling on the market price of that structure, a ceiling which may not be, and frequently is not, even approached in actual market negotiations. When this inherently inflationary attribute of reproduction cost evidence is considered in light of the misleading exactitude which such evidence almost invariably imparts to a jury unsophisticated in the niceties of economics, the justification for placing substantial safeguards upon its admission is apparent.” Nichols, Eminent Domain, § 20.2 (3d ed., 1969).

One essential safeguard is that the witness qualify as an expert knowledgeable in the cost of building materials. “The qualifications of the building expert (usually an engineer, architect or builder or possibly all three) must be established. . . . Sometimes a builder [our, italics] is hired to appraise the value of the structures by rule of thumb; so much a cubic foot multiplied by the number of cubic feet of building. Such an appraisal is worthless. It is not even approximately correct.” Jahr, Eminent Domain Valuation and Procedure, § 157 (1957). Demonstrably more serious defects inhere in the testimony of the witness Pearce, not even a builder, who depended for his information upon printed services evidently not patterned upon construction costs in Damascus, Arkansas — a town of 255 people according to the 1970 census.

We cannot say that the testimony was not prejudicial. It would be natural for the jurors to be much impressed by the fact that, according to Pearce, both the available methods of evaluation came to the same figure, $12,900, to the penny. That the verdict was fixed at that exact amount leaves the prejudicial effect of the inadmissible proof not fairly open to doubt. *

Reversed.


author: Lyle Brown, Justice.

text:
    INTERNATIONAL HARVESTER CO. v. Earl PIKE
    5-5427
    466 S. W. 2d 901
    Opinion delivered February 15, 1971
    [Rehearing denied May 10, 1971.]

      Wright, Lindsey & Jennings, for appellant.
    /. Hugh Lookadoo and McMath, Leatherman, Woods ir Youngdahl, for appellee.
   Lyle Brown, Justice.

Appellee Earl Pike obtained judgment for personal injuries and property damage against International Harvester Company and its Mal-vern distributor, Burks Motors Inc., as a result of a mechanical failure of appellee’s International transport truck, which failure substantially wrecked the transport and caused serious injuries to appellee. This appeal is by International, in which several points for reversal are submitted and to which we shall later refer. Burks Motors filed a separate appeal because its single point is adverse to International — case number 5-5425.

At the time of the mishap appellee was engaged in the long haul truck transport business and was hauling bulk flour from Arkansas City, Kansas, to Little Rock, Arkansas. He lived in the Malvern area. In the spring of 1965, after negotiating with the International Harvester zone officials at Little Rock and the International distributor at Malvern, Burks Motors, appellee purchased a new 1965 model truck to replace an old truck. The new truck was delivered to him in July 1965. The cost was $24,785.17. In December 1965 appellee experienced his first trouble with the torque arm assembly. The mechanism is located under the fifth wheel and the purpose is to prevent the axle from going forward or backward when the truck is accelerating or slowing down. Within a period of six months appellee had trouble with the assembly on four occasions.

The first occasion. About two months after the purchase of the truck, appellee and his brother were unloading flour in Little Rock. The brother noticed a loose bolt in the torque rod assembly. It was the bolt that held the torque rod assembly to the differential. The truck was taken to International’s shop in Little Rock. The brothers testified that International had the bolt and bushing repaired at a machine shop. The brother, Marvin Pike, testified that the nut at the end of the bolt was loose, and that the looseness was caused by some internal wear in the assembly. Appellee said he was instructed by the shop manager to take the truck to Burks Motors in Malvern for future repairs.

The second occasion. In February 1966 the same bolt again became loose and the truck was taken to Burks Motors. Appellee testified that the bolt was worn, that defect being visible once the bolt was removed. That was the bolt which had been inserted by International Harvester in Little Rock. Mr. Burks testified that the bolt had to be replaced. He had the replacement bolt made at a local machine shop since none was carried in stock. Witness Burks stated that he did not know the hardness of the metal in the bolt; that the bolt was not secured by a self-locking nut because the threads would not take it; and he did not know whether the bolt and nut were torqued.

The third occasion. On March 4, 1966, the machine shop bolt broke or fell out and the differential housing landed on the pavement. There was no serious damage done because the vehicle was travelling at slow speed. The truck was towed to Burks Motors.

The fourth occasion. Among other repairs, Burks Motors again replaced the torque arm bolt. Burks testified that he called Memphis, Hot Springs, Texarkana, Little Rock, and Dallas, and finally located one on March 9 in Dallas. He said he was looking for a M" bolt, &A" long. Burks ordered the bolt under the catalog number 75S029C1. A loose-leaf catalog insert had been sent to all dealers in 1964 showing that the 753029C1 bolt had been replaced with a 757815C1 bolt. The witness said he did not keep up with the numerous inserts, “but, even if we order a number of bolt that has been replaced, International Harvester automatically sends the correct part.” The bolt received from Dallas (and which was installed) was about W shorter than the International Harvester bolt removed in February. The witness testified that when he called Little Rock concerning the bolt, that office gave him the number 753029C1. Appellee testified that the truck was obtained by him from Burks Motors on March 10. He said he looked at the bolt before leaving and observed that it had a nut on the end which had been tacked on with a weld; and that the bolt had sleeves and washers on it. Appellee made a trip to Arkansas City, Kansas, without mishap. He started on his second trip on March 17. A short distance from.. Malvern the torsion bolt was said to have broken, the front drive differential turned over, and went underneath the back drive axle, causing the damage to the truck and personal injuries to appellee. It is on the basis of that experience that appellee filed his suit.

So much presently for the four described incidents. Appellee testified that when he placed an order for the truck he specified the heavy type torque rod with the assembly mounted on springs instead of rubber pads. The truck was not equipped as desired and appellee said he voiced an objection. He said the dealer insisted that he take the truck and try it and if appellee was not satisfied a change would be made.

Logan Ross testified for appellee. He is in business in Malvern, specializing in buying and repairing Ford and International trucks. He has been so engaged for well over thirty years. It was his opinion that the light (as opposed to the heavy) torque rod assembly was much less preferable. He thought the design of appellee’s assembly was improper and caused vibration which in turn damaged the rod.

The principal witness for appelle was Ben W. Hopkins of Little Rock, a graduate and registered consulting engineer. He examined the bolt which had been installed by International Harvester in Little Rock in the fall of 1965. He testified, as abstracted:

The bolt had been severely galled and is reduced in diameter in certain areas. This reduction in diameter affects the strength of the bolt. The galled areas evidence extremely excessive wear. The flanges on the differential housing are heavily battered and worn. This was caused by a chattering movement in the torque arm assembly. The flanges on the forward differential housing for the forward torque rod assembly have been, worn in an elliptical pattern. The entire torque rod assembly which attaches to the housing is worn. Based on the wear I found in this bolt I would expect to find wear in the component parts, that is, the other parts of the torque rod assembly with which the bolt had had contact. I found such wear. I found chewed up lumps of pressed metal when I removed the rubber which covers the portion of the forward torque rod assembly where it attaches to the housing. In my opinion the torque rod assembly end which connects with the yoke on the differential housing is of improper design. The rest of the assembly is adequate. It is my opinion that the frictional bond, under certain conditions, could not be maintained in this assembly even though it was properly installed.

The witness purchased from Burks’ parts department a duplicate of the shorter bolt which was in the forward assembly when the truck wrecked. Of that bolt the witness had this to say:

Using the bolt which I bought from Mr. Burks, inserting it in the yoke arms with the bushings installed, you cannot get the self-locking nut all the way on the threaded end of the bolt. If this size bolt were used there is no way in the world that it could be installed properly; and if it was not installed properly there would have to be movement, wear, and eventual failure. There is no question about that, and there is no way you could keep it from failing. It would not make any difference how the assembly was designed, it would fail if you put the too-short bolt in there.
I am of the opinion that the torque rod assembly which was installed in Earl Pike’s truck, by reason of improper design, would ultimately have failed regardless of installation.
It is my opinion, with the torque arm and the bushings worn as they were on March 10, 1966, the assembly was improperly installed. In other words the man putting it back together on March 10, 1966, shouldn’t have put it back together.

Likewise, International Harvester presented the testimony of a graduate engineer who is chief engineer for Hendrickson Manufacturing Company. Hendrickson has been making torque rod assemblies since 1962. The torque rod itself, he explained, is made by another company and furnished to Hendrickson. Hendrickson furnished the torque rod assembly in question to International. We summarize the pertinent parts of his testimony:

The fact that a torque rod is lightweight means only that it weights less than some other type. It does not mean that it has less strength. As a matter of fact the light-weight torque rod is forged, whereas the heavier one is cast. The lightweight O 8c S torque rod assembly has more durability than the heavy one. This is because of the particular type of packing in the end assembly of the lightweight unit.
The special locking nut would not be effective if the bolt is used which is W shorter than the proper one. The locking portion of the nut could never engage if the shorter bolt were used.
The old bolt was No. 75S029C1 and the new one is No. 757815C1. In my opinion, with the worn torque rod assembly parts which came from Mr. Pike’s truck, you could not get proper torque. I would expect a failure regardless of the bolt used, if the other worn parts were used in assembling the unit.
In my experience in working for Hendrickson I have never known of other instances where there has been a failure of the W bolt. We have been making these assemblies since about 1962. We have sold between 800,000 and 1,000,000 O 8c S type assemblies.
You cannot properly make the installation of the assembly in question using the old 753029C1 bolt which is 6M" long. You cannot get the nut far enough on the bolt to engage the locking mechanism of the nut. With this nut you could never maintain any torque.

Bernard Creech, manager of International Harvester at Little Rock, testified that the first repair to appellee’s truck in December 1965 was to the torque arm assembly. He explained that the inserts were loose and when the inserts Were replaced it seemed to take the slack out. He corroborated Mr. Burks to the effect that if someone ordered a part by number which was out of date, he would send the proper up-to-date part. On cross-examination it was revealed that the bolt was replaced. He also agreed that appellee talked to him about installing a heavier torque rod system but to his knowledge none was available.

On behalf of appellee the court submitted the issue of negligence as against International Harvester and Burks Motors; and, as against International Harvester, the issue of implied warranty was submitted. At the request of International Harvester the court gave an interrogatory on assumed risk but refused to submit the issue of negligence on the part of appellee. The total responsibility for the mishap was fixed, ninety-one per cent to International Harvester and nine per cent to Burks. Personal damages were fixed at $70,000, and to the truck, $17,000. At the request of International Harvester an additional interrogatory was submitted asking the jury to apportion that negligence between design and in assembly or repair. The jury attributed ninety per cent to negligence in design and ten per cent to assembly or repair. (International Harvester filed a third-party complaint against Hendrickson Manufacturing Company, which supplied the torque assembly. That complaint was dismissed by the court. International wanted the last mentioned computation in the event International was successful in overturning the court’s order dismissing Hendrickson.)

One of the asserted errors is that the trial court erred in refusing to grant a mistrial after appellee’s attorney, in closing argument, advised the jury that an affirmative answer to the assumption of risk interrogatory would preclude recovery by appellee. The attorney told the jury: "If the jury finds that Earl Pike assumed the risk of his own injury, he will not receive a nickel.”

Pertinent to the problem mentioned is Wright v. Covey, 233 Ark. 798, 349 S. W. 2d 344 (1961). There the trial court told the jury, in a general instruction, that the needie-ence of the plaintiff would not bar recovery if the negligence was of less degree than defendant’s negligence, in which event plaintiff’s recovery would be diminished in proportion to plaintiff’s negligence. This court did not reverse, and for this reason:

* * * We do not think that the rather general language of this instruction, needless though it may have been, had the effect of telling the jurors anything which they as intelligent men might not have deduced from the wording of the special interrogatories.

Nevertheless, in Wright v. Covey, we recognized the general rule against informing the jury of the effect of their answers to interrogatories:

The appellants rely upon the rule, often announced in other jurisdictions, which prohibits a trial court, in submitting a case upon special interrogatories, from informing the jury of the effect that their answers may have upon the ultimate liability of the parties. Mitchell v. Perkins, 334 Mich. 192, 54 N. W. 2d 293; Grasso v. Cannon Ball Motor Freight Lines, 125 Tex. 154, 81 S. W. 2d 482; Anderson v. Seelow, 224 Wis. 230, 271 N. W. 844. The reason for the rule is that the special interrogatories are intended to elicit the jury’s unbiassed judgment upon the issues of fact, and this purpose might be frustrated if the jurors are in a position to frame their answers with a conscious desire to aid one side or the other.

Our next case dealing with the subject is Argo v. Blackshear, 242 Ark. 817, 416 S. W. 2d 314 (1967). There we said:

* * * [T]his situation justifies the rule that for the judge to specifically inform the jurors as to the effect of their answer on the ultimate judgment is reversible error.

Wisconsin has long employed the use of interrogatories and in that jurisdiction is to be found a multitude of cases on the subject. That court has consistently held as it did in Beach v. Gehl, 204 Wis. 367, 235 N. W. 778 (1931):

It is reversible error * * * [for the court] to inform the jury expressly or by necessary implication of the effect of an answer * * * to a question * # # of the special verdict upon the ultimate right of either party litigant to recover or upon the ultimate liability of either party litigant.

Our statute authorizing interrogatories, Ark. Stat. Ann. § 27-1741.2 (Repl. 1962), is similar to Rule 49 of the federal rules of civil procedure. Federal decisions comport with the cases we have cited. See Thedorf v. Lipsey, 237 F. 2d 190 (1956).

The cited authorities refer to the actions of the presiding judge, but the rule is equally applicable to court and counsel. Erb v. Mutual Service Casualty Co., 123 N. W. 2d 493 (Wis. 1963).

Appellant next contends that the court erred in refusing to submit the issue of appellee’s negligence to the jury. The court submitted the issue of assumption of risk by appellee but refused to give the jury an interrogatory on appellee’s alleged negligence. “The law is well settled that whenever a fact question is made on assumption of risk or on contributory negligence, then such issue or issues should be submitted to the jury.” Aetna Casualty & Surety Co. v. Brashears, 226 Ark. 1017, 297 S. W. 2d 662 (1956).

We think the issue of appellee’s negligence should have gone to the jury. Trouble developed with the assembly on three occasions prior to the mishap of March 17 and within a period of some four months; a breakdown in the assembly, because of the part it plays in the control of the truck, creates a potentially dangerous hazard; and through his experiences over the years in owning and operating several transport trucks, appellee was well versed in the structure and function of the torque assembly. (At the time of trial he had seven trucks in operation.) Logan Ross testified on cross-examination that a few months before the wreck of March 17 he observed the assembly in place and could tell that something was wrong with it; and he said he explained to appellee “what I was seeing.” Ross’s testimony was not controverted; in fact, he was appellee’s witness. According to appellee’s expert witness the bolt which was removed by International Harvester in December 1965 was severely galled and reduced in diameter in certain places, which indicated trouble in other areas of the assembly. Under the recited facts and circumstances should appellee, as a reasonably prudent man, have been content with what might be rightfully called superficial repairs? That was a question for the jury. It is only “when reasonable minds must draw the same conclusion” that a question in issue is one of law for the court. St. Louis & S. F. Rd. Co. v. Rie, 110 Ark. 495, 165 S. W. 149 (1913).

Since the case must be reversed because of the errors we have discussed, we shall touch only on those remaining points of appellant which are likely to arise upon retrial.

1. The evidence was insufficient as a matter of law to support a verdict against appellant. We do not agree. Appellee’s expert witness testified, in substance, that appellee had been supplied an assembly which could not maintain the required frictional bond even if the assembly was properly installed. He thought the assembly would inevitably fail. His opinion was supported by the testimony of an experienced mechanic, Logan Ross. Additionally, International Harvester supplied the bolt which was inserted in March 1966, and which could not be properly installed. Those are only some of the reasons why the point is without merit.

2. Even assuming negligence on the part of appellant, the negligence of Burks Motors was, as a matter of law, an efficient intervening cause. Again we disagree. The point is substantially answered by our explanation under the preceding point.

3. The court erred in giving instructions and submitting interrrogatories to the jury pertaining to breach of warranty. The trial court, by appropriate instructions and an interrogatory, submitted the issue of implied warranty of merchantability. The trial court refused to submit the question of express warranty, apparently for the reason that the warranty had, according to its terms, expired. The third paragraph of the written warranty has the disclaimer provision:

This warranty is in lieu of all other warranties, express or implied, including, without limitation, warranties of MERCHANTABILITY and FITNESS FOR PARTICULAR PURPOSE, all other representations to the original purchaser, and all other obligations or liabilities, including liability for incidental and consequential damages, on the part of the Company or the seller. No person is authorized to give any other warranties or to assume any other liability on the Company’s behalf unless made or assumed in writing by the Company, and no person is authorized to give any warranties or to assume any liabilities on the seller’s behalf unless made or assumed ip writing by the seller.

With the exception of what we have reproduced in caps the remainder of the lettering is smaller than the type appearing on this page, and the lines are narrowly spaced. We cannot classify it as being conspicuous, which is one of the requirements of a disclaimer. Marion Power Shovel Co. v. Huntsman, 246 Ark. 152, 437 S. W. 2d 784; Mack Trucks v. Jet Asphalt, 246 Ark. 101, 437 S. W. 2d 459. Furthermore, there was substantial evidence that the warranty was delivered to appellee some time after the sale was made, constituting “a unilateral attempt of a party to limit its obligation.” Mack Trucks v. Jet Asphalt, supra. The court was correct in submitting the issue of implied warranty.

Reversed and remanded.

Harris, C. J., and Holt, J., are of the opinion that the trial court was correct in refusing to submit to the jury the issue of appellee’s negligence.


text:
    Sadie Donley HOLBROOK v. Shelby APPLEBERRY, Jr.
    5-5463
    463 S. W. 2d 100
    Opinion delivered February 15, 1971

      Dickey, Dickey é Drake, for appellant.

      Gill & Clayton, for appellee.
   Lyle Brown, Justice.

This is a dispute between adjoining landowners concerning their respective rights and responsibilities with respect to a drainage ditch which flows along their common boundary line, thence across appellant’s land and into a bayou. The chancellor held that the ditch is a mutual or common ditch; that both parties possess a drainage easement across the lands of the other; that neither party can obstruct the drain without the consent of the other; that the parties are entitled to have the ditch restored to its former depth and width; that each party should pay the expense of restoring and maintaining the ditch on his or her lands; that appellee should construct a crossing with a culvert at a point designated by appellant which would afford her a crossing to and from her lands; and that appellant should maintain the crossing. Appellant Hol-brook here contends that it was error for the court to determine that a mutual or common ditch exists, and that appellee has lately added nine acres to his holdings and that the draining of the additional acreage constitutes an unauthorized burden on appellant.

A public highway and Amos Bayou in Desha County run side by side and form a crescent, with the parties’ farms being inside the crescent. Appellee Shelby Apple-berry, Jr., owns a tract of sixty-nine acres. Appellant, Mrs. Holbrook, owns 120 acres which border appellee on his south and west sides. That part of appellant’s land which is on appellee’s west side is between appl-lee’s land and the highway and bayou. The following exhibit reflects the location of the lands, the drainage ditch, the highway, and the bayou.

The ditch starts at the southeast corner of appel-lee’s land and traverses the edge of his south boundary. From the southwest corner of appellee’s land the ditch continues across appellant’s lands. A culvert was placed under the highway to permit the water to flow into the bayou.

Appellee testified that the drainage ditch was constructed in 1952 under an oral agreement between Mr. and Mrs. Donley and appellee; that Mr. and Mrs. Donley contributed $75 to the construction cost and that ap-pellee contributed $250; and that appellee drained sixty acres into the ditch and Mr. and Mrs. Donley drained 120 acres. (Mr. Donley later died and Mrs. Donley married a Holbrook.) A drain pipe was placed under the road by the county judge to connect with the bayou. Appellee said he paid for the labor, with the county judge furnishing the pipe. Appellee exhibited a can-celled check for $404.50 which he said he paid in 1958 to have the ditch cleaned out with a drag line. He testified that he informed Mrs. Holbrook of his intention to clean out the ditch and that she voiced no objection.

Witness Olan Fleming testified that he helped to dig part of the ditch in 1952 and 1953 and that he had heard Mr. Donley refer to the ditch as a joint ditch. Witness Jerry Haynes testified that he farmed the lands of Mrs. Holbrook from 1965 through 1968. He said that during that time the water drained from the Hol-brook lands into the ditch and on out to the bayou.

Appellant testified that she did not remember her husband entering into any agreement concerning the ditch in question; and that her husband paid $75 for a ditch at another location. She said appellee used the ditch by permission only and that she had given him permission to clean out the ditch. On cross-examination she admitted that in 1960 she constructed a ditch along the east boundary line of her property and it connected with the common ditch.

We cannot agree with appellant that the findings of fact of the chancellor are not supported by a preponderance of the evidence. As to the law, this case is substantially similar to Graves v. Wimpy, 237 Ark. 368, 372 S. W. 2d 812 (1963). There the parties, acting in concert and under oral agreement, constructed a drainage ditch in 1954 to serve both parties. “We think that appellant and appellee each have a right, in the nature of a license, to the unobstructed use of this community ditch,” citing Wynn v. Garland, 19 Ark. 23 (1897). Also, see Thompson on Real Property, Vol. 2 § 225 (Repl. 1961).

Finally, appellant contends that appellee, at some time since 1952, has added additional burden on the drainage ditch. She points out that he has added nine acres of land to the drainage project and that he has commenced irrigating his crops. The issue, if raised by the pleadings, is not abstracted, nor is the point adequately developed by the proof. Additionally, appellant is practicing irrigation and she has added an auxiliary ditch on her east boundary which flows into the common ditch. If the common ditch is overburdened with water we cannot tell from the evidence which of the litigants is causing it.

Affirmed.


author: John A. Fogleman, Justice.

text:
    Fred V. CASSADY v. STATE of Arkansas
    5557
    463 S. W. 2d 96
    Opinion delivered February 15, 1971

      Monroe L. Bethea, for appellant.

      Joe Purcell, Attorney General; Garner L. Taylor, Jr., Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant Fred V. Cassady seeks reversal of the circuit court’s denial of his petition for postconviction relief. He asserted there and here that he was denied due process and equal protection of law because:

1. he was not indicted by a grand jury for the crimes for which he was sentenced;
2. his trial followed upon an illegal arrest;
3. he was not afforded adequate and effective assistance of counsel.

He also contends that he was denied constitutional rights against self-incrimination by interrogation by the court upon the hearing of both the petition for revocation of suspension of his sentence and his petition for postconviction relief.

We find no error.

Lack of grand jury indictment was not asserted in appellant’s petition to the trial court. We will not entertain any ground for reversal that was not an issue in the trial court. Kozal v. State, 248 Ark. 214, 451 S. W. 2d 224; Petty v. State, 245 Ark. 808, 434 S. W. 2d. 602; Heath v. State, 207 Ark. 425, 181 S. W. 2d 231. Furthermore, appellant’s own petition alleges that his prosecution was founded upon information filed by the prosecuting attorney. It has been held in cases too numerous to cite that this procedure does not violate either state or federal constitutional requirements. See, e. g., Davis v. State, 246 Ark. 838, 440 S. W. 2d 244.

Even if his arrest was illegal, appellant was not relieved from trial upon a charge duly made or entitled to release -if he was guilty. Perkins v. City of Little Rock, 232 Ark. 739, 339 S. W. 2d 859. No assertion is made that any evidence obtained as a result of an illegal arrest was offered against appellant at any time.

Appellant’s contention that he was denied adequate and effective assistance of counsel is based upon his assertion that his counsel at the hearing at which the suspension of his sentence was revoked, had a conflict of interest. This argument is based upon the attorney’s simultaneous representation of appellant’s wife in a suit against him for divorce. The record discloses that the same attorney had represented Cassady when the circuit court suspended his sentences and placed him on probation. The record discloses that at the revocation hearing appellant voluntarily stated, without being interrogated on the subject, that he and his wife were “getting a divorce this morning.’’ It is inconceivable that appellant could have been unaware of the identity of the attorney representing his wife in that proceeding, as he alleges in his petition. He certainly offered no evidence to sustain this allegation. He made no representation or objection to the trial court relative to this conflict at that time. His belated complaint is unworthy of consideration under these circumstances.

Appellant’s point with reference to interrogation by the court at his revocation hearing cannot be considered because the court’s inquiries at both hearings were made and answered without any objection whatever. Bivens v. State, 242 Ark. 362, 413 S. W. 2d 653; Carter v. State, 230 Ark. 646, 326 S. W. 2d 791; McDonald v. State, 160 Ark. 185, 254 S. W. 549. Furthermore, the inquiries related, for the most part, to a confirmation by appellant of the court’s previous action in his cases. The only remaining inquiry was whether appellant had violated the terms of his probation. In view of appellant’s voluntary declaration that he deserved to be sentenced and wanted “to get it over with,” we cannot see how these inquiries could have violated any of appellant’s rights, in any event.

The judgment is affirmed.