text:
    SMART CHEVROLET COMPANY v. McArthur DAVIS
    76-400
    558 S.W. 2d 147
    Opinion delivered December 5, 1977
    (In Banc)

      Purtle, Osterloh & Weber, for appellant.

      Paul K. Roberts, for appellee.
   George Rose Smith, Justice.

Smart Chevrolet Company brought this action to obtain judgment for a deficiency resulting from its repossession and resale of a car which it had sold to the defendant, McArthur Davis, in 1973. Davis filed a counterclaim against Smart and a third-party complaint against the manufacturer, General Motors Corporation. An earlier appeal disposed of a procedural point. Davis v. General Motors Corp., 257 Ark. 983, 521 S.W. 2d 214 (1975). Upon trial the jury returned a $678.93 verdict in favor of Davis against Smart and a verdict in favor of General Motors. Smart alone appeals. (A synopsis of the testimony was approved by the trial judge pursuant to Ark. Stat. Ann. § 27-2127.11 [Repl. 1962].) A new trial must be ordered because of the submission to the jury of an erroneous measure of the damages recoverable by Davis against Smart.

Davis testified that after he had used the car for several months it began using oil and stopped running properly. He said he took the car to Smart for repairs and stopped making his monthly payments when Smart refused to return it to him. Smart’s proof tended to show that the engine had been damaged by having been run without enough oil. General Motors proved that it had given Smart a $400 credit for the installation of a new engine. Smart’s failure to show that it passed on to Davis the benefit of that credit justified thejury’s differing treatment of the dealer and the manufacturer, so that the two verdicts are not necessarily inconsistent.

Smart cites our decision in Hudspeth Motors v. Wilkinson, 238 Ark. 410, 382 S.W. 2d 191 (1964), to support its argument that Davis cannot claim damages for breach of warranty after having failed to reject the car within a reasonable time. It is true there was not a seasonable rejection. In fact, Davis’s own statement that he discontinued his payments because Smart refused to return the car rebuts his present insistence that there was a timely rejection. That omission, however, is not a bar to a claim for breach of warranty. On this point our holding in Hudspeth was specifically overruled in Stimson Tractor Co. v. Heflin, 257 Ark. 263, 516 S.W. 2d 379 (1974).

On the other hand, the proof would have justified a finding by the jury that Davis promptly asserted his claim for breach of warranty. Written notice is not required by the Uniform Commercial Code. Davis did return the car for repairs, with an explanation of its asserted defects, and General Motors’ offer to replace the engine implies a recognition that the car was defective. The court erred, however, in instructing the jury that the measure of damages for breach of warranty was the amount of Davis’s down payment and monthly installments. The correct measure of damages is the difference between the actual value of the car and the value it would have had if it had been as warranted. Ark. Stat. Ann. § 85-2-714 (Add. 1961); Kohlenberger v. Tyson’s Foods, 256 Ark. 584, 510 S.W. 2d 555 (1974). There is no evidence of that difference; so the verdict against Smart cannot be sustained.

Reversed and remanded.

Byrd, J., not participating.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    Arthur WYSS v. STATE of Arkansas
    CR 77-153
    558 S.W. 2d 141
    Opinion delivered December 5, 1977
    (Division I)

      C. W. Knauts, for appellant.

      Bill Clinton, Atty. Gen., by: Jackson Jones, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Arthur Wyss was charged with the burglary of a church at Knob, in Clay county, with the theft of a piano and other church property, and with the theft on the same day of an axe and other tools kept at Luttrell’s Sawmill. The jury returned a verdict of guilty as to the third charge, a misdemeanor, and imposed a six-month jail sentence. A mistrial was declared as to the other two charges, the jurors being unable to agree. On this appeal from the conviction the appellant’s principal arguments, among seven points for reversal, relate to the sufficiency of the State’s proof and to the admissibility of evidence obtained without a search warrant.

The State proved that on February 1, 1976, the church was broken into and the piano and other property were taken. Investigation led the police to suspect Wyss as the criminal and to suspect that some of the stolen tools might be in a pickup truck that Wyss had been driving. On the night of February 9 several officers went to the home of Wyss’s father, in the Knob community, to interview Arthur Wyss. He refused to be interrogated. One of the officers left to obtain a warrant for a search of the truck, while two other officers remained on the premises. They heard a vehicle start up and concluded that it had been driven into the surrounding woods. They searched the woods and found the pickup truck about a mile from the home place, off the road and wedged between two trees. With the aid of a flashlight they saw in the bed of the truck, in plain view, an axe which they recognized from its prior description as having been stolen from the sawmill. There were also a crowbar and a toolbox in the bed of the truck, but the officers did not take possession of those articles until they made a second trip to the truck after the third officer returned without having been successful in obtaining a search warrant late at night.

Arthur Wyss was arrested and taken to jail. In a statement which the trial judge found to be admissible — and we agree with that finding — Wyss in effect admitted at least complicity in the theft of the piano by saying that it had been sold for $200 and that he could recover it within four or five days if given the opportunity. We need not detail the proof that leads us to sustain the trial judge’s finding that the statement was voluntary.

First, the warrantless seizure of the axe, the crowbar, and the toolbox, was valid. The axe was in plain view and was recognized by the officers as being stolen property. We do not agree that the officers were not entitled to be where they were when they discovered the truck. A search of open land without a warrant is permissible. Hester v. United States, 265 U.S. 57 (1924); Rules of Criminal Procedure, Rule 14.2 (1976). We have applied the same rule to forested areas. Bedell v. State, 257 Ark. 895, 521 S.W. 2d 200 (1975). The constitutional provisions; state and federal, against unreasonable searches and seizures protect the people in the security of “their persons, houses, papers, and effects. ” A wooded area a mile away from the elder Wyss’s house, even though it belonged to him, cannot be regarded as appurtenant to his house or curtilage and so falls in the same category as an open field. Orme v. State, 52 Okla. Crim. 253, 4 P. 2d 125 (1931). It Would be wholly unreasonable to require law enforcement officers, in the pursuit of an escaped criminal, to obtain a search warrant as a condition to looking for him in a forest. This case falls within the same reasoning. Further, the officers, having recognized the axe as stolen property, were justified in also taking the crowbar and the toolbox, in view of Luttrell’s report that tools in addition to the axe had been stolen from the sawmill. We do not regard a toolbox as “a repository of personal effects,” such as the footlocker that was protected in United States v. Chadwick, 45 U.S.L. W. 4797 (U.S., June 21, 1977).

Second, given the admissibility of Wyss’s statement to the officers and of the items taken from the truck, the State’s proof was sufficient to make a case for the jury. Wyss’s admissions implicated him in the burglary of the church. There was ample proof that the crowbar found in the truck had been used in that burglary. No matter whether the truck was owned by Arthur Wyss or by his brother, Arthur had access to it and had used it a number of times. Thus the jury could reasonably believe that Arthur had stolen the axe, the crowbar, and the other tools and had placed them in the bed of the truck.

There is no necessity for discussing in detail the other arguments for reversal. The court sustained the State’s objections to questions put to the elder Wyss about the ownership of the truck. Without a proffer of proof we cannot tell whether the rulings were prejudicial. Counsel twice stated that the necessary proffers would be made at the next recess, but it does not appear that any proffer was ever made. No error is shown in the court’s admission into evidence of a black-and-white photograph of tire marks found at the scene of the burglary. A similar color picture had been received in evidence without objection. The only argument made is that the black-and-white photo was without probative value. Even so, it could not have prejudiced or misled the jury; so at best the error was harmless. Lastly, a passing reference to other property taken from the church and the prosecutor’s arguments to the jury were clearly not so inflammatory as to require the trial judge to resort to the drastic step of declaring a mistrial.

Affirmed.

We agree. Harris, C.J., and Fogleman and Hoi/r, JJ.


text:
    Johnny HARRIS v. STATE of Arkansas
    CR 77-173
    558 S.W. 2d 143
    Opinion delivered December 5, 1977
    (In Banc)

      Solloway, Cronkhite & Jackson, by: Lanny K. Solloway, for appellant.

      Bill Clinton, Atty. Gen., by: Joyce Williams Warren, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Upon trial by jury the appellant was found guilty of capital murder and was sentenced to life imprisonment without parole. For reversal he argues that the trial court should have sustained his motion to suppress evidence — two pistols — obtained under separate search warrants and that the State’s proof, apart from the testimony of accomplices, is insufficient to support the verdict. We affirm the judgment.

On August 20, 1976, according to the State’s proof, two men entered the home of Beulah Collins, robbed her of a money belt containing $200, left her tied up, and killed Joe Vinson, who was renting a room in the house. Someone, presumably the robbers, set fire to the house the next day, but Mrs. Collins was rescued by neighbors. Mrs. Collins testified that the robbers took a .22-caliber pistol and a .32-caliber pistol.

On August 24 the appellant Harris was arrested on a bad-check charge. Soon after that arrest the arresting officer saw a pistol on the floor of the car that Harris was driving. The officer obtained a search warrant and seized the pistol, which was shown by its serial number to have been the .22 that was taken from Mrs. Collins. The search of the vehicle took place at about 8:30 p.m. On the basis of that evidence the officers at once obtained a second warrant and searched Harris’s apartment, finding on the person of his brother-in-law, Curtis Fryer, a .32-caliber pistol which was adequately shown to be the other gun that was taken.

The validity of the first seizure presents no real question, because the pistol might have been taken by the arresting officer under the plain-view doctrine, without a warrant. With respect to the second seizure, however, both the affidavit for the warrant and the warrant itself are challenged.

We find the affidavit sufficient, under the principles laid down in Aguilar v. Texas, 378 U.S. 108 (1964), and later cases. The affidavit contains a statement by the affiant that an informant had, before Harris’s arrest on August 27, told officers that Harris was a participant in the robbery-murder that occurred on August 20. The affiant went on to say that the informant’s reliability was shown by the fact that the .22-caliber revolver, serial number T523073, that was taken in the robbery was found in the vehicle that Harris was operating. The same informant reported that a sawed-off shotgun used in the robbery-murder was at Harris’s home. An immediate search was called for, because evidence of the robbery-murder could be readily disposed of.

On the basis of the affidavit the magistrate was justified in finding that the informant (who testified at the trial) was reliable,because her statement about Harris’s participation in the earlier crimes was shown by the seizure of the .22 to have been accurate. Hence the informant’s further statement that a sawed-off shotgun used in the crimes was at Harris’s home justified the issuance of a warrant for the search of that home.

As to the warrant itself, it did not recite, as required by the Rules of Criminal Procedure, Rule 13.2 (1976), that the magistrate found reasonable cause for the issuance of the warrant, that it be executed only between 6:00 a.m. and 8:00 p.m., that it be executed within 60 days, or that the return be made within 5 days after execution. It is also argued that no exigent circumstances justifying a nighttime search were shown in the affidavit.

The Rules themselves recognize that all the recitations just mentioned are not essential to the validity of a warrant. Rule 16.2 provides that a motion to suppress shall be granted only if the court finds that a violation is substantial or contrary to the federal or state constitution. The Fourth Amendment and Article 2, Section 15, of the Constitution of 1874 stress the really vital matters: That the warrant be issued upon probable cause, supported by oath or affirmation, and that it particularly describe the place to be searched and the person or thing to be seized. Those essential requirements were met in this instance.

The question, then, is whether the absence of the several recitations was a substantial violation of Harris’s rights. We do not think so. Inasmuch as the warrant was executed and the return made within a few hours after the warrant was issued, the omission of the 60-day and 5-day directives could not have prejudiced Harris. As to the need for a nighttime search, the officer’s sworn statement that evidence of the crimes might be disposed of was certainly a basis for prompt action. We may note, parenthetically, that when the officers entered Harris’s apartment with the search warrant, Fryer ran out of the back door with the .32-caliber pistol that was introduced at the trial. Finally, the magistrate’s actual issuance of the search warrant established his finding of reasonable cause even more positively than the insertion of a conclusory finding to that effect would have. See Baxter v. State, 262 Ark. 303, 556 S.W. 2d 428 (1977), where we upheld the warrant even though the magistrate’s finding was not that there was reasonable cause for the issuance of the warrant but merely that there was reasonable ground for suspicion that the described property was concealed in Baxter’s house. Here we find no substantial violation of Harris’s rights.

There remains to be considered the sufficiency of the State’s proof, apart from the testimony of accomplices. We find the proof sufficient, for either of two reasons. First, the necessity for corroboration of accomplices’ testimony was not mentioned in any way in the trial court and was therefore waived. Trotter v. State, 215 Ark. 121, 219 S.W. 2d 636 (1949); Morris v. State, 197 Ark. 778, 126 S.W. 2d 93 (1939).

Second, there was in fact sufficient corroboration of the accomplices’ testimony. The murder itself was proved by wholly independent evidence. The finding of the .22-caliber pistol in Harris’s car established his connection with the crime. In addition, Fryer, who cannot be said to have been an accomplice as a matter of law, testified to Harris’s having been away from his home, with the accomplices, when they said he was, and to Harris’s having stated two days before the crime that he was going to rob somebody and tie them up. That, in substance, is just what happened.

Affirmed.

Byrd, J., not participating.


text:
    Billy J. LINCOLN v. STATE of Arkansas
    CR 77-179
    558 S.W. 2d 146
    Opinion delivered December 5, 1977
    (In Banc)

      Don Langston, for petitioner.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for respondent.
   George Rose Smith, Justice.

Billy J. Lincoln, an inmate in the Department of Correction, filed in this court a petition for a writ of habeas corpus, asking for his release from custody on the ground that a circuit court order revoking an earlier suspended sentence is void. We treat the petition as one for a writ of certiorari to review an assertedly void order. On the basis of the entire record of the proceedings in the circuit court we find the order of revocation to be valid and therefore deny the writ.

In 1973, upon a plea of nolo contendere, the circuit court found Lincoln guilty of possession of drugs and imposed a 5-year sentence, with 3 years suspended. Upon his release from the penitentiary Lincoln moved to Texas. In June of 1977 Lincoln returned to Fort Smith, Arkansas, and got into a public fight with Mary Woods, with whom he had been living for several years. Two police officers were called, who separated the two combatants and placed Lincoln under arrest. He was charged with the possession of a firearm by a felon and with third-degree battery. The arrest was on June 13 or 14. On the basis of the charges the prosecuting attorney filed, on June 17, a petition to revoke the suspended sentence. On June 21 Lincoln was tried by the Fort Smith municipal court upon the pending charges, was found guilty, and was sentenced to six months in jail and to fines of $500 and $50.

A hearing upon the petition to revoke the suspended sentence was set for September 1, which was the 79th or 80th day after Lincoln’s arrest. On the afternoon before that hearing the public defender filed a motion to dismiss the petition for revocation, on the ground that more than 60 days had passed since Lincoln’s arrest. On September 1 the circuit judge denied that motion, heard testimony about the fight and Lincoln’s possession of a pistol, revoked the suspension, and sentenced Lincoln to serve 2 Vz years in the Department of Correction. Upon the recommendation of both the public defender and the prosecutor, Lincoln was given credit for 79 days of jail time.

This case is essentially controlled by Blake v. State, 262 Ark. 301, 556 S.W. 2d 427 (1977), and Walker v. State, 262 Ark. 215, 555 S.W. 2d 228 (1977), where we held that the 60-day limit contained in Ark.’Stat. Ann. § 41-1209 (Crim. Code 1976) begins to run from a defendant’s arrest for a violation of the terms of suspension, not from his arrest upon other charges. The only significant difference between this case and the earlier ones is that here Lincoln did file a motion to dismiss the petition for revocation before it was heard by the circuit court. That difference, however, is immaterial, because Lincoln was not confined to jail as a result of the petition for revocation. His confinement was due solely to his arrest upon other charges, which were tried in the municipal court within 8 days after the arrest and resulted in a conviction. There was no request by Lincoln for an earlier hearing upon the petition for a revocation of the suspension. No error is shown.

We have decided this matter on the merits, because the application of Supreme Court Rule 9 to this type of proceeding is perhaps not completely clear; but we point out for the future that when such a petition is accompanied by a single copy of the record of the proceedings in the trial court, that record should be abstracted in accordance with Rule 9.

Writ denied.

Byrd, J., not participating.


author: Frank Holt, Justice.

text:
    Rick PEARSON v. STATE of Arkansas
    CR 77-185
    558 S.W. 2d 149
    Opinion delivered December 5, 1977
    (Division II)

      Robert S. Blatt, for appellant.

      Bill Clinton, Atty. Gen., by: Jackson Jones, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was placed on five years’ probation pursuant to his plea of nolo contendere to a charge of theft of property. As a condition of his probation, he was ordered to pay restitution in the amount of $3,266, which was the value of the cash and merchandise allegedly stolen, at the rate of $150 per month. Upon appellant’s failure to make the monthly payments, the trial court found that appellant had violated his probation, set it aside, fround him guilty of theft of property, and sentenced him to three years’ imprisonment. On appeal, appellant asserts, through his court appointed counsel, that the trial court abused its discretion in revoking his probation because the state failed to sustain its burden of proving that the nonpayment of restitution was willful or in bad faith and that he had the ability to pay.

As a condition of probation, the trial court is authorized to require the defendant to make restitution to the aggrieved party, “in an amount he can afford to pay, for the actual loss or damage caused by his offense. ” Ark. Crim. Code § 41-1203 (2) (h) (1976). A court may revoke the probation, enter a judgment of conviction, and impose any sentence that may have been imposed originally for the offense “if the court finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his suspension or probation.” Ark. Crim. Code § 41-1208 (4) and (6) (1976).

At the time of his plea, appellant made no objection to the amount set as restitution and after reading the Statement of the Court Respecting Probation in the presence of his attorney, he signed it, acknowledging that he understood it, and accepted all conditions imposed by the court. It is undisputed that appellant, after making the first two monthly payments, had failed for four consecutive months to make the required restitution payments before the first revocation hearing. Appellant testified that he was unable to make the payments because he had a wife and three children to support; had to pay other bond fee expenses and had been waiting to see what was going to happen on another criminal charge; he cleared about $115 a week and would “like to have 60 days to get it caught back up where I could afford to make my $150 a month payments ....;” sixty days “would help me quite a bit” because “[t]hey are getting ready to start a big project and I’m going to get about 32 hours a week overtime.” The court postponed a decision to “see what Mr. Pearson has done . . . [o]r whether he has done anything.” The court stated to appellant, “you give the appearance of just really not caring until you get in a crack so we’ll just see what the next four weeks bring. ...”

Approximately a month and a half later, another hearing was held. Appellant admitted failing to make any payments on the arrearage. In the interval two other payments became delinquent. Appellant stated that he had been trying to sell his car to make the payments, but he had to pay $500 to the bonding company to get his car back so he could sell it. Appellant’s wife testified that they were “going to pay the $500 to the court here .... but since they had postponed it we had "took the $500 to pay the bonding company over here so we could sell this car and make up all these payments.” She stated that she had gotten the car back a couple of weeks before and was using the car now “just to show it.” Further she testified that there were prospective buyers who were “just trying to get the money up.”

Heretofore, in a revocation proceeding, we have required the appellant to demonstrate the court abused its discretion. Hereafter, we require appellant to show the court’s finding was clearly against the preponderance of the evidence.

In the circumstances we cannot say that the court’s finding that appellant had inexcusably failed to (comply with the condition of his probation is clearly against the preponderance of the evidence.

Affirmed.

We agree: Harris, C.J., and George Rose Smith and Hickman, JJ.


author: Darrell Hickman, Justice.

text:
    Roxie McDONALD, Executrix of the Estate of Hazel PETTY, Deceased v. Ray D. PETTY et al
    77-87
    559 S.W. 2d 1
    Opinion delivered December 5, 1977
    (Division II)

      Gibbs Ferguson, for appellant.

      Gibson & Gibson, P.A., for appellees.
   Darrell Hickman, Justice.

This case is a sequel to McDonald, Ex’x v. Petty, 254 Ark. 705, 496 S.W. 2d 365, 414 U.S. 1105, 38 Law Ed. 2d 733, 94 S. Ct. 831 (1973). The background facts of this litigation are sufficiently recited in the earlier case in which we reversed a finding that there was an oral contract to make a will naming some of1 the present appellees as beneficiaries. After our decision these appellees filed a petition for probate of a holographic will. Apparently, the document was discovered by one of the appellees during the pendency of the first case. The probate court found that the document was a holographic last will and testament and vested title to the testator’s real estate in the appellees. We now have this question on appeal.

We agree with appellant’s argument that since the document sets forth no words of a dispositive nature, it was defective on its face because it lacked the required animus testandi or intent to make a will. Therefore, extrinsic evidence, which the court admitted, was not admissible to prove the necessary intent.

The instrument relied upon by appellees is reproduced below

Appellees cite Chambers v. Younes, Adm’r, 240 Ark. 428, 399 S.W. 2d 655 (1966), as being the most pertinent case to the issue presented here to justify extrinsic evidence to prove testamentary intent. There, however, the holographic writing expressed an intent. It read: “I Boyd Ruff request that all I own in the way of personal or real estate property to be my wife Modene.” Also appellees overlook that a review of the cases there recognized that the words in a holographic instrument must indicate a testamentary intent. We have consistently held that whether an instrument is sufficiently testamentary in form and substance to be admitted to probate is a question of law for the court to determine from the face of the proffered instrument and there can be no will unless there exists in the mind of the writer that it was his intent to make a testamentary disposition of his property and that intent must be expressed so that there can be no mistake as to what was intended. Smith v. Nelson, 227 Ark. 512, 299 S.W. 2d 645 (1957); Stark v. Stark, 201 Ark. 133, 143 S.W. 2d 875 (1940); and Cartwright v. Cartwright, 158 Ark. 278, 250 S.W. 11 (1923). See also Ark. Stat. Ann. § 60-404 (Repl. 1971). In Stark we quoted with approval and said:

‘The question whether or not an offered instrument is testamentary in form or substance so as to be admitted to probate is one of law for the court to determine from the face of the offered instrument.’ But this and all other cases are to the effect that there is no will unless there exists the ‘animus testandi,’ which phrase is defined as the intention to make a will, and the existence of this intention is not a matter of inference, but must be expressed so that no mistake be made as to the existence of that intention.

Here the instrument is merely a sketch or drawing on the back of a used envelope with names in individual squares, directions indicated, and the decedent’s signature and date. There is absolutely nothing indicating an intent that this instrument should serve as a testamentary disposition of his property. No case is cited to us nor has our research revealed one that would uphold this instrument or a similar one as facially sufficient to permit extrinsic evidence to establish it was intended as a will. Certainly, it cannot be said that its expressions are so clearly stated that, without inference, no mistake can be made as to the existence of a testamentary intention.

Since we hold the instrument was facially insufficient to permit extrinsic evidence to establish the requisite intent to make a will, it becomes unnecessary to consider appellant’s other contentions.

Reversed and remanded with directions to deny the holographic instrument for probate.

We agree: Harris, C.J., and Fogleman and Holt, JJ.


text:
    THE CHILDREN’S MERCY HOSPITAL OF KANSAS CITY, MO., a/k/a THE MERCY HOSPITAL OF KANSAS CITY, MISSOURI, JACKSON COUNTY v. Randolph J. CHICK, Candice R. CHICK & Penelope K. CHICK
    77-92
    559 S.W. 2d 3
    Opinion delivered December 5, 1977
    (Division II)
    [Rehearing denied January 9, 1978.]

      A. D. McAllister, Jr., of Wade, McAllister, Wade & Burke, for appellant.

      Niblock & Odom, for appellees.
   Darrell Hickman, Justice.

The Washington County Probate Court refused to admit to probate the will of Grace Chick Atwater. The appellant hospital, one of the beneficiaries in the will, appeals the decision of the probate judge alleging that the court erroneously denied admitting the will to probate. First, the appellant claims the statutory requirements for execution of a will were proved; and, second, the statutory requirements for proving a will were met by the testimony of two witnesses.

We find that the probate judge properly refused to admit the will to probate because two witnesses did not testify that the will was in the handwriting of the deceased. Therefore, it is unnecessary for us to discuss the first allegation of error.

The document offered as a will purportedly contained the testatrix’s signature. Two witnesses signed the document attesting to the signature. At a hearing, contesting the probate of the will, the appellant called two witnesses to establish that the will was duly executed.

The first witness, an attesting witness, testified that he signed the will as a witness. He said that the testatrix’s signature was on the will but he could not swear the testatrix’s signature was on the will at the time he signed it.

The other attesting witness was deceased so his widow was called to testify. She testified that her husband’s signature was on the document as an attesting witness. However, she could not or did not testify that the will was, in fact, signed by the testatrix.

The Probate Code sets forth the requirements for proving a will in such a situation:

If only one[l] or neither of the attesting witnesses is living at a known address within the continental United States and capable of testifying or if after the exercise of reasonable diligence the proponent of the will is unable to procure the testimony of two [2] attesting witnesses, in either event the will may be established by the testimony of at least two [2] credible disinterested witnesses proving the handwriting of the testator and such other facts and circumstances, including the handwriting of the attesting witnesses whose testimony is not available, or would be sufficient to prove a controverted issue in equity, together with the testimony of any attesting witness whose testimony is procurable with the exercise of due diligence. Ark. Stat. Ann. § 62-2117(2) (Repl. 1971).

The appellant argues that this statute does not mean that two witnesses are required to prove the signature of the testatrix. We disagree. In the facts of this case only one witness testified that the will contained the signature of the testator. The other witness, the widow of the other attesting witness, only identified her husband’s signature as an attesting witness. She could not or did not offer testimony regarding the handwriting or signature of the testator. Therefore, the requirements of the Arkansas law in establishing a will were not met and the order of the probate judge was correct.

The other issue questions whether the will was properly executed. We need not discuss it in view of the fact that the court had proper grounds for not admitting this document to probate.

Affirmed.

We agree: Harris, C.J., and George Rose Smith and Fogleman, JJ.


text:
    Eva L. PASCALL v. Stanley E. SMITH
    77-102
    558 S.W. 2d 150
    Opinion delivered December 5, 1977
    (Division I)

      R. Bynum Gibson, Jr., of: Gibson & Gibson, P.A., for appellant.

      James Merritt and George N. Holmes, of Holmes, Holmes & Trafford, for appellee.
   Darrell Hickman, Justice.

Stanley E. Smith, the appellee, filed an action in the Drew County Chancery Court claiming that he had acquired title by adverse possession to certain lands as against his former wife, Eva L. Pascall, the appellant. The parties were divorced in 1965 and the decree was silent as to this particular piece of property which had been held by the parties as tenants by the entirety.

After Smith offered evidence and rested his case, Pascall demurred to the evidence and elected to stand on that demurrer, not offering any evidence to the court.

The trial court entered the following order:

The demurrer to the evidence at the close of plaintiff’s proof should be and is hereby overruled and the defendant has elected to stand on said motion.

The appellant argues on appeal that the court should have sustained the demurrer to the evidence; and, that the court permitted the appellee, Stanley E. Smith — who was seventy-six years old — to testify by what amounted to leading questions.

The appellee argues that the appeal should be dismissed because the order overruling the demurrer is not an appealable order; otherwise, appellee disagrees with appellant on the two allegations of error.

It is not necessary to rule on the arguments raised on appeal by either party because the order in this case is not an appealable order. In a similar case we remanded the cause to give the attorneys an opportunity to obtain a final judgment and file a notice of appeal. Nunez v. O. K. Processors, 238 Ark. 346, 381 S.W. 2d 754 (1965). After noting that we were moving somewhat on our own to alleviate a hardship, we stated:

. . . this opinion is intended to provide a precedent under which lawyers may supply similar deficiencies in future cases without the court’s intervention. Nunez, supra, at 348.

Since there was no final order dismissing the complaint or terminating the action, the order was not appealable. Coffelt v. Gordon, 238 Ark. 619, 385 S.W. 2d 939 (1965); Allred v. National Old Line Ins. Co., 245 Ark. 893, 435 S.W. 2d 104 (1968). Therefore, the appeal is dismissed without prejudice.

Dismissed.

We agree. Harris, C.J., and George Rose Smith and Fogleman, JJ.


author: John A. Fogleman, Justice.

text:
    James E. PARROTT, As Father, Next Friend and Guardian of Jarrott PARROTT v. Mark MALLETT
    77-99
    558 S.W. 2d 152
    Opinion delivered December 12, 1977
    (Division II)

      Hodges, Hodges & Hodges, by: David Hodges, for appellant.

      Hale, Hendricks, Thurman & Capps, P.A., and John Biscoe Bingham, for appellee.
   John A. Fogleman, Justice.

Appellant James Parrott brought this action for himself and as next friend and guardian of his minor son Jarrott for personal injuries to the son suffered in an automobile collision. A jury found that appellee was negligent and that his negligence was the sole proximate cause of Jarrott Parrott’s injury. Thejury awarded James Parrott damages of $700, but found that Jarrott was entitled to “0” damages. Appellant argues that the verdict was error, that the circuit court erred in denying a motion for new trial and that the judgment based on the verdict should be set aside and a new trial ordered. The basis of all the relief sought on appeal is the alleged error in the failure of thejury to award damages to Jarrott Parrott. We find no reversible error.

James Parrott’s recovery in his own right is not involved, as the judgment in his favor has been paid. The damages sought on behalf of his son were for permanent partial disability past and future, pain and suffering, past and future mental anguish, loss of ability to earn, past and future, and hospital and medical expenses.

Jarrott Parrott testified that he blacked out at the time of the collision and when he regained consciousness, he was dizzy, his back was hurting and he had a knot on his head, but he did not figure there was much wrong with him on account of the wreck. He drove his car home but his mother took him to a hospital, where he was kept overnight after Dr. Lowery had said that he had suffered a minor concussion. He said that he continued to suffer headaches and such back pain that he had to sleep on the floor for about four months because he could not sleep in a bed. He stated that he was still having to sleep on a hard bed. Jarrott later returned to Dr. Lowery for a checkup, but did not again see any doctor until he had been injured in a fight with his brother, during which he had been struck on the head by the brother at the same place he had been, struck in the automobile collision. Jarrott then spent four days in the hospital. The hospital record showed that Jarrott complained of an injury to the head on this occasion. He went to work after this incident, first operating a sanding wheel and then painting, and had been continuously employed by the same employer until the date of the trial more than eight months later. He said that he could perform any function he had done before the injury, but that sometimes when he bent and lifted something, he suffered a pain in his back.

Admittedly, Jarrott told inquirers at the scene of the accident that he wasn’t hurt, although he claimed that the knot on his head was plainly visible. He said that Dr. Lowery had prescribed some pills for back pain, but that he had never had the prescription refilled. James Parrott paid all his son’s medical and hospital bills. He corroborated Jarrott’s testimony about sleeping on the floor (for about two weeks, he said) and about having plywood under his mattress until Mrs. James Parrott had purchased a firm mattress for his bed. He also said he saw the bump over Jarrott’s eye. James Parrott testified that Jarrott had missed no work on account of his back injury.

Jarrott’s mother also said that she saw the knot on his head and that, when he seemed sleepy just after the collision, she took him to a doctor, who sent him to a hospital. She said that he had slept on the floor for two or three months, and, that on occasion, he slept on the floor even after he started sleeping on a firm mattress. She said he no longer had headaches and had seen no physician since his release from the second stay in the hospital.

Dr. Austin Grimes saw Jarrott more than a year following the automobile collision for the purpose of evaluating the injuries resulting from it. This doctor was told that Jarrott had experienced no trouble with his back until approximately one week after the incident. He found no objective evidence of back injury, and nothing to corroborate Jarrott’s complaints of pain, although the symptoms Jarrott described were consistent with an automobile accident of the type described by Jarrott. He said that, based on Jarrott’s complaint, the permanent partial impairment suffered would be less than 5% — so minimal it was hard to put a figure on it.

Morris Mallett and a police officer who were at the scene of the collision shortly after it happened saw no bruises or lumps about Jarrott.

Appellant concedes that our inquiry must be confined to a determination whether appellant proved any pecuniary injury, See House v. Finney, 252 Ark. 66, 477 S.W. 2d 482. He argues that a new trial should have been granted because a pecuniary interest was established without contradiction. With this, we cannot agree. The jury could have found and apparently did find that appellant had not shown that Jarrott suffered pecuniary damage. There is no evidence that Jarrott spent one cent for medical expenses, or that he lost pay for a single moment on account of the injuries he suffered. Appellant says that the father, James Parrott, sued only to recover damages to his personal property, i.e., the automobile. If there were medical expenses incurred, they were paid by the father, who would have been entitled to recover them if he had sought recovery in this action.

We have long recognized that, in case of injury to a minor child, there are two separate and distinct causes of action: one in favor of the infant for his injuries and one in favor of the parent for losses suffered by the parent. Sibley v. Ratliffe, 50 Ark. 477, 8 S.W. 686. In Lopez v. Waldrum Estate, 249 Ark. 558, 460 S.W. 2d 61, we addressed ourselves to our holdings as to the elements of damage recoverable by each, pointing out that a suit by a father in behalf of his unemancipated minor child, is the child’s cause of action, and not the father’s, but that the parent is entitled to recover in his own right for expenses incurred and to be incurred by the parent on account of an injury to the child. We have not specifically stated that recovery cannot be had in an action on behalf of a minor child for medical expenses incurred and to be incurred during his minority, where he has not paid them and is not liable for them. By an overwhelming weight of authority, it is held that no award for such damages may be made in an action brought on behalf of the child, where the child is unemancipated and not responsible for his own debts and has not .paid the bill for such expenses. McCormack, Damages § 91, p. 329; 4 Sutherland on Damages (4th Ed.) 4737, § 1250; Annot., 37 ALR 11, 29, supplemented 32 ALR 2d 1060, 1069. Still, there is implicit recognition of the rule, which is really only an application of the principle stated in Sibley, in Arkansas cases cited in the annotations to which we have referred. See also, Comment AMI, Civil (2d), 2213.

Appellant errs in asserting that our review is directed toward determining whether the verdict was against the preponderance of the evidence and that, if we find that it was, the circuit judge abused his discretion in denying his motion for new trial. The question of preponderance was for the trial judge, and we will not reverse unless there was no substantial evidence to support the submission of the disputed question to the jury. Louisiana & A. Ry. Co. v. O’Steen, 194 Ark. 1125, 110 S.W. 2d 488; St. Louis-San Francisco Ry. Co. v. Porter, 199 Ark. 133, 134 S.W. 2d 546; Baldwin v. Wingfield, 191 Ark. 129, 85 S.W. 2d 689.

Since Jarrott Parrott showed no right to recover any pecuniary damages which were subject to accurate measurement, and since we cannot say that there was no substantial evidence to support the jury verdict that he was not entitled to recover any damages, the judgment is affirmed.

We agree. Harris, C.J., and Holt and Hickman, JJ.


text:
    Captola LEMAY v. W & R CORPORATION
    77-101
    558 S.W. 2d 154
    Opinion delivered December 12, 1977
    (Division II)

      Friday, Eldredge & Clark, by: Frederick S. Ursery, for appellant.

      Laser, Sharp, Haley, Young & Boswell, for appellee.
   Frank Holt, Justice.

This is a slip and fall case. The appellant fell on the parking lot of the Jacksonville Shopping Center. The parking lot is owned by the appellee. The appellant alleged that her fall and injuries resulted from stepping on an unknown wet substance on the parking lot. The jury awarded her damages and the trial court entered a judgment n.o.v. for the appellee on the basis that the appellant failed to prove her allegation that the substance had been on the parking lot for an unreasonable period of time as required by law. Appellant contends for reversal that substantial evidence was presented that the substance had been on the parking lot for such a length of time that the appellee should have known of its presence and failed to use ordinary care to remove it. We agree with the trial court.

The appellant testified that, after shopping in one of the stores, she fell in the parking lot of the shopping center when she stepped on a greasy spot approximately 3” by 8” long. This occurred about 5 p.m. on a sunny day. She described the spot as being grayish in color and it had soaked into the parking lot asphalt. Her sister, who was with her, testified that the greasy light substance had soaked into the asphalt and she could not identify it. According to the investigating police officer, the slippery spot on the asphalt “had soaked in a little bit and I really don’t know what it was.” The original circle caused by the substance appeared to have shrunk or gotten smaller. Appellee’s parking lot attendant testified that he worked about two hours in the mornings and only removed paper and trash from the area.

It was necessary for the appellant to present substantial evidence that the substance had been on the parking lot for an unreasonable period of time. Kroger Grocery and Baking Co. v. Dempsey, 201 Ark. 71, 143 S.W. 2d 564 (1940). The determination of whether a foreign substance has remained on the owner’s premises for an unreasonable time, depends upon the location of the foreign substance on the owner’s premises. A foreign substance is more readily discoverable inside a store than in a parking area. This court’s recognition of this distinction is based upon the fact that “common knowledge” dictates “that a foreign object in an aisle inside the store would, or should, ordinarily be discovered sooner than if the same object were placed on the parking lot. That is because most store personnel are confined to the store quarters and are constantly working the aisles. ” Jackson and Kroger Co. v. Hemphill, 245 Ark. 699, 434 S.W. 2d 818 (1968). See also Ledford v. Gas Mart Co., Inc., 259 Ark. 1, 531 S.W. 2d 11 (1975).

Here, giving appellant’s proof its strongest probative force, we think it is insubstantial. The most she established was that there existed an unknown slippery substance on the shopping center parking area that had partially soaked into the asphalt and debris was removed only during the morning hours. It would require speculation as to what the substance was and the length of time it had been on the asphalt surface. To hold otherwise would be placing too great a duty upon the owner, as here, of the premises.

Affirmed.

We agree: Harris, C.J., and George Rose Smith and Hickman, JJ.


text:
    Jordan BIERBAUM v. CITY OF HAMBURG
    77-104
    559 S.W. 2d 20
    Opinion delivered December 12, 1977
    (Division I)

      William E. Johnson, for appellant.
    No brief for appellee and cross-appellant.
   Darrell Hickman, Justice.

Jordan Bierbaum is the appellant and his appeal was dismissed on his motion which the City of Hamburg, the appellee, joined; therefore, we have before us only the issues raised on cross-appeal by the appellee.

This suit was filed in the Ashley County Chancery Court by Bierbaum seeking a mandatory injunction against the City of Hamburg asking that the city be required to move a sewer pumping station illegally built on a lot owned by Bierbaum. The city did not deny that it had built the pumping station on the wrong lot and counter-claimed asking that the court condemn the property where the station was located and award damages to Bierbaum.

The trial court denied Bierbaum’s request for mandatory injunction and declared the city had a right to condemn the property; but, the case was transferred to the circuit court for a determination of damages. It is from that order that the parties filed their appeals.

We feel the trial court should have retained jursidiction of the cause to determine damages.

Bierbaum gave the city a small plot of land, 20 feet square, on which to build the pumping station. The station, by mistake, was built on another lot owned by Bierbaum. Bierbaum’s request to have the pumping station moved is understandable. The city’s, or contractor’s mistake — neither accepted responsibility — was inexcusable. However, the chancellor denied the injunction for good cause. Many families were connected to the sewer line and if the pumping station was moved, in the words of one counsel, “eighty families would be discommoded.”

Furthermore, the chancellor was right in granting the city the right to invoke the power of eminent domain and condemn the property where the punping station was built. The station was built on a vacant lot and occupies an area about 20 feet square.

We feel the chancellor should have assessed damages under the “clean-up” doctrine rather than transferring the case to the circuit court for a determination of damages.

We are not unmindful of our decision in the case of Arkansas State Highway Commission v. Rice, 259 Ark. 190, 532 S.W. 2d 727 (1976), which the chancellor used as a reason for transferring the damage aspect of the case to circuit court.

Normally a landowner should not be denied the right for a jury to assess damages in a condemnation case. However, here are circumstances where a chancery court may assess damages in a condemnation case. This is such a case. First, the landowner filed a proper lawsuit in chancery court and, therefore, jurisdiction was properly obtained. Second, the public condemning authority, in this case the city, asked the court to condemn the land and assess damages. There was no objection by the landowner to the chancellor setting damages although damages were not what the landowner wanted. Third, the court on its own motion transferred the case to circuit court; the landowner did not ask for a jury trial on damages. We feel all these reasons were good cause for the chancellor to maintain jurisdiction and decide all issues in the case under the doctrine that once a chancery court acquires jurisdiction for one purpose it may decide all other issues. This doctrine is commonly referred to as the “cleanup” doctrine. Selle v. City of Fayetteville, 207 Ark. 966, 184 S.W. 2d 58 (1944).

The city’s request that we enter an order describing the property on which the station was located may be dealt with by the chancellor.

We remand this case with directions for the chancery court to hear the damages part of the lawsuit.

Reversed and remanded.

We agree. Harris, C.J., and George Rose Smith and Howard, JJ.


text:
    Larry Ray HUTCHERSON v. STATE of Arkansas
    CR 76-177
    558 S.W. 2d 156
    Opinion delivered December 12, 1977
    (In Banc)

      James M. Thweatt, for appellant.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

This is an appeal from a Monroe County Circuit Court conviction sentencing Larry Ray Hutcherson to life imprisonment without parole for the capital murder of Ron Brooks — an Arkansas state policeman.

Just before noon on February 27, 1975, three men escaped from the Monroe County jail in Clarendon. The victim, Ron Brooks, chased the escapees into an alley in Clarendon, fired his gun and ordered them to stop. One of the escapees continued to run and was captured later. The other two were detained by Brooks and handcuffed. After the escapees were handcuffed and during or after a search of their persons, Brooks was killed. Larry Ray Hutcherson, one of the escapees, was convicted of the capital felony murder for killing a policeman acting in the line of duty.

The factual disputes in this case concern which of the two escapees killed Brooks, and which one of three pistols was used to fire the fatal shot. Several guns were introduced into evidence. There was evidence that indicated that the weapon of the jailer, which was discovered missing at the time of the escape, was used to kill Brooks.

Throughout the trial the two escapees were distinguished by witnesses as being either the tall or the short one, or the darker as opposed to the lighter-complected one. The state’s evidence showed that Hutcherson was taller and lighter-complected than the other escapee.

Two eyewitnesses said they saw one of the men shoot and kill Brooks. One eyewitness observed the shooting from her residence which bordered on the alley. The other eyewitnesses observed the incident from a street adjoining the alley. These witnesses’ testimony also amounted to an identification of Hutcherson.

In reviewing the evidence on appeal, we must view it in the light most favorable to the appellee and affirm if there is any substantial evidence. Downs v. State, 259 Ark. 510, 532 S.W. 2d 427 (1976). Here there is substantial evidence to sustain the conviction.

The appellant raises nine issues on appeal which will be discussed separately.

I.

The trial court refused to grant a motion in limine which would have prohibited the state from offering evidence that Hutcherson was involved in a jail break immediately prior to the killing.

We find no prejudice in the court permitting this evidence to be introduced. Brooks was killed while apprehending Hutcherson and another man who had just escaped from the Monroe County jail in Clarendon. The escape was an inseparable part of the charge in this case. The evidence was used to help prove that Brooks was a policeman acting in the line of duty at the time he was murdered. Therefore, the evidence was properly admitted. Harris v. State, 239 Ark. 771, 394 S.W. 2d 135 (1965); cert. denied, 387 U.S. 964 (1965).

II.

The trial court denied the appellant’s request to sequester the jury.

The appellant made a timely motion to sequester the jury and argues on appeal that a small town the size of Clarendon would make it difficult, if not impossible, to have an impartial jury as required by Art. 2, § 10 of the Arkansas Constitution.

The decision to sequester or allow the jury to separate is within the sound discretion of the court. Ark. Stat. Ann. § 43-2121 (Repl. 1964); Nail v. State, 231 Ark. 70, 328 S.W. 2d 836 (1959). We find no evidence in the record to indicate in any way that the court abused its discretion. The court repeatedly advised the jury to not discuss the case, read any newspapers, watch television or listen to the radio. It was the burden of the appellant to show that the jurors were improperly influenced by being permitted to separate or by being subject to exposure. Newton v. State, 189 Ark. 789, 75 S.W. 2d 376 (1934).

III.

The trial court refused the appellant’s motion for the state to produce and pay for a transcript of the appellant’s previous trial.

Hutcherson’s first trial ended in a hung jury on June 19, 1975. The case was reset for trial on December 3, 1975, but was continued at the request of defendant until February 23, 1976. The motion to produce the transcript of the previous trial was not filed until about three days before the February trial date. The trial judge ruled that the motion was untimely.

Counsel for Hutcherson argued that he had told the trial judge and the prosecuting attorney in December he was going to file such a motion. However, it was never conclusively shown that Hutcherson was an indigent or that the transcript of the previous trial was necessary for his defense. Furthermore, the motion was not timely filed.

Counsel for Hutcherson was the same at both trials. Counsel did not file a request for payment as appointed counsel after the first trial, indicating that he had been paid by Hutcherson’s parents. Although the motion for the transcript stated Hutcherson was an indigent, no. evidence was offered to prove indigency.

The right to a transcript paid for by the state is based on the premise that an indigent cannot afford it. Roberts v. LaValee, 389 U.S. 40 (1967). The state should not bear the cost of a transcript if the defendant is able to pay for that transcript.

As to the necessity of the transcript, counsel for the defense was given access to all signed documents by the witnesses that were in the possession of the state. The testimony of one of the witnesses had been transcribed at the request of the state. On these bare facts we cannot say that Hutcherson was denied his rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Finally, the motion was not timely filed.

IV.

The court denied the defendant’s motion for a change of venue.

A timely motion for change of venue was filed on behalf of Hutcherson. After hearing witnesses for both the state and Hutcherson, the trial court denied the motion.

Essentially the argument is that this case is controlled by our decision in Hildreth v. State, 214 Ark. 710, 217 S.W. 2d 622 (1949). In Hildreth, three appointed defense counsel swore that they had questioned numerous residents in the county and every one of them thought the defendant could not obtain a fair trial in that county; but, these citizens refused to sign affidavits because of public sentiment. The lawyers then offered to testify, but the court refused to hear them.

The facts in Hildreth are hardly comparable to the facts in this case. Counsel for Hutcherson filed an affidavit stating that he could not obtain affidavits required for change of venue. Nine witnesses were then called and questioned by counsel. Most of the nine were called by the defense. Not a single witness testified that Hutcherson could not receive a fair trial. There was no evidence at all offered that a diligent effort had been made to obtain the required affidavits; nor did counsel for Hutcherson offer to testify about his efforts. The court did not abuse its discretion in denying this motion. A bare allegation of local prejudice is not enough to warrant a trial court ordering a change of venue.

V.

Appellant claims the trial court limited his attorney’s voir dire of prospective jurors.

The appellant’s attorney asked a prospective juror a confusing question; the state objected to the question; the juror answered; the debate continued; and, the allegations of error pertain to the trial court’s eventual ruling. The question and answer were:

Q. If they presented evidence to you trying to prove to you that he was guilty beyond a reasonable doubt, would you also expect him to prove to you some evidence that he is innocent?
STATE’S ATTORNEY: I am going to object.
A. I think you got me wrong there. I think that is the reason I answered the question wrong. I think he does have to testify to prove his innocence.

A considerable amount of discussion transpired between counsel and the trial court and the record reflects that the judge and the lawyers disagreed over the meaning of the question and answer. The trial court after considerable argument did not limit counsel for Hutcherson but decided that the question was confusing and misleading. The court stated:

I am going to not limit your question, but I am going to limit the form of the question in the future to not ask a double barrelled question which I think that one was.

We agree with the trial court’s decision. The question was misleading. Counsel was evidently trying to determine if the juror understood the presumption of innocence. However, he asked whether the juror felt Hutcherson must prove his innocence because the state was trying to prove its case beyond a reasonable doubt. The question dealt with issues, and the trial court was merely telling defense counsel to structure his questions so a layman could more easily grasp the fine distinctions the question, as phrased, presented. This ruling did not limit counsel’s ability to voir dire on the presumption of innocence, therefore, no prejudice is shown.

Furthermore, the trial judge was extremely lenient with counsel for Hutcherson and the prosecuting attorney in their questions to prospective jurors.

VI.

The trial court after the state had rested its case denied an oral motion that the transcript of a witness’ testimony be produced.

This argument is identical to the argument made in the third allegation of error. Again, the motion was not timely made. After the state had rested its case and after direct and cross-examination of a witness who had testified at the previous trial, defense counsel asked for the transcript of her testimony to be reproduced before proceeding. The motion was denied. Nevertheless, the appellant’s attorney conducted a thorough cross-examination of this witness, obviously discrediting her testimony to some degree.

Counsel for Hutcherson argues that this eyewitness who had viewed the killing from her window adjacent to the alley, did not at the prior trial directly identify Hutcherson as the man shooting the policeman. However, during this trial she did point out Hutcherson as the man who shot the policeman.

The trial court was deeply troubled by this motion. During a discussion of the motion there was some disagreement about what the witness had actually testified to at the first trial. Finally, the court ruled that the motion was untimely made.

We cannot find that the trial court abused its discretion in denying this motion after the witness had testified. This was the second request made for a transcript. The case had been tried once and this same witness was called both times. Perhaps this was a greater reason why defense counsel should have anticipated the need for the transcript prior to trial and made a timely motion for the transcript rather than wait until during the second trial to request a delay and a production of the transcript of the witness’ prior testimony.

VII.

The appellant moved for mistrial when it was learned that the policeman’s father talked to one or more members of the jury during a recess.

It was called to the attention of the court during the recess that one of the jurors was seen talking to the father of the deceased policeman. The court immediately called the father to the witness stand and questioned him about any conversation that may have taken place. The court was satisfied by the answers of the father that nothing had been said which would prejudice a juror. We have before us only the argument that such a meeting would in and of itself constitute prejudicial error. Mistrial is a drastic remedy granted only when an error cannot otherwise be cured. Foots v. State, 258 Ark. 507, 528 S.W. 2d 134 (1975). We cannot say from the sparse record before us that such a meeting alone was prejudicial error. Therefore, we find no abuse of discretion by the trial court in denying the appellant’s motion for mistrial.

VIII.

An investigator’s file was left in the witness room where the jurors were placed for a period of time and the appellant upon learning about the file moved for a mistrial.

The file contained considerable information about the charge, and the investigation of the crime. It also had Hutcherson’s name on a tab affixed to the folder.

The court did not poll the jury as to their knowledge of the existence of the file or whether any of them had looked at the file. We feel the trial court should have allowed defense counsel to question the jurors about the file.

Rule 606 of the Uniform Rules of Evidence provides in part:

... a juror may testify on the questions whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.

We feel that this matter could not have been cured by an admonition by the court and should have been pursued at the request of defense counsel. Therefore, we remand this case to give Hutcherson the opportunity to examine the jurors about their possibly having viewed th,e file, and any prejudice that may have resulted.

IX.

Hutcherson was not allowed to be present when the record in this case was reconstructed from the court reporter’s notes. The tapes of the first trial were destroyed by a fire at the court reporter’s home.

In Butler v. State, 261 Ark. 369, 549 S.W. 2d 65 (1977), Butler made a request to be present when the record was reconstructed and we ordered that the trial court should have granted that request. Because no such request was made in this case, we find no error.

In summary, we have reviewed all of the allegations of error and find merit in only one of them. Subject to the outcome of the proceedings to determine prejudice of the jurors, we find no error in the record.

Remanded for proceedings not inconsistent with this opinion; otherwise, affirmed.

Byrd and Howard, JJ., not participating.


author: George Howard, Jr., Justice.

text:
    Larry S. ENZOR v. STATE of Arkansas
    CR 77-182
    559 S.W. 2d 148
    Opinion delivered December 12, 1977
    (Division I)
    [Rehearing denied January 16, 1978.]

      Greene, Cottrell & Craig, by: J. H. Cottrell and Jay Fred Friedman, for appellant.

      Bill Clinton, Atty. Gen., by: Jackson Jones, Asst. Atty. Gen., for appellee.
   George Howard, Jr., Justice.

The question to be resolved in this case is essentially whether the search of appellant’s automobile and the seizure of a substantial quantity of marijuana are compatible with the prohibition against unreasonable search and seizure under the Fourth Amendment to the United States Constitution which is made applicable and binding upon a State and its political subdivisions under the due process clause of the Fourteenth Amendment to the United States Constitution.

THE FACTS

Larry Steve Enzor, appellant, was charged by information on April 22, 1976, with possession with intent to deliver a controlled substance in violation of Act 590 of 1971, as amended and generally referred to as the Uniform Controlled Substances Act.

The charge followed an incident taking place on March 15, 1976, in which appellant was routinely stopped by an officer of the Arkansas State Police for a malfunction in his right taillight assembly. While advising appellant of the malfunction and checking appellant’s driver’s license, the officer observed a plastic box extending from beneath the arm rest of the front seat which contained approximately five marijuana cigarettes. After appellant stepped out of his vehicle and was in the process of securing his registration certificate, the officer saw a small quantity of green vegetable material on the floorboard which also appeared to be marijuana. The officer advised appellant that appellant was under arrest for possession of marijuana and that appellant’s vehicle would have to be searched, and if appellant, insisted, a search warrant could be obtained; however, on the other hand, appellant could consent to a search. After hesitating for a moment, appellant offered the officer the key to the trunk, but the officer refused the key and advised appellant that appellant could open thr trunk if he wished.

After appellant opened the trunk to his automobile, the officer discovered 193.44 pounds of marijuana in brick form.

On February 23, 1977, appellant was found guilty as charged and was sentenced to the Arkansas Department of Correction for a term of three years. Appellant waived a jury trial.

Appellant seeks reversal of the judgment and conviction on two grounds: (1) The trial court erred in denying appellant’s motion to suppress and in admitting into evidence the fruits of an alleged unlawful search and seizure, and (2) That there is no substantial legal evidence to support the findings and judgment of the court. A consideration of these grounds necessarily requires a consideration of the following questions: (1) Whether the initial stop and detention of appellant was lawful?, (2) Whether the seizure of articles from the passenger compartment of appellant’s automobile was lawful? and, (3) Whether the search of the trunk of appellant’s automobile was lawful?

THE INITIAL STOP AND DETENTION

Appellant stresses that the officer and his civilian passenger testified that there were two brake lights functioning on the left rear of appellant’s vehicle and one of two brake lights functioning on the right rear. Consequently, appellant was in complete compliance with the requirements of Arkansas Statutes Annotated § 75-711 (1975 Supp.), which merely requires at least two stop lamps, thus, the initial stop and detention of appellant was unjustified and accordingly, unlawful.

This argument is neither persuasive nor convincing in an effort to show that the officer had no legal basis for stopping and detaining appellant inasmuch as Arkanaas Statutes Annotated § 75-2108 (1) (1975 Supp.) provides in part as follows:

“The Director, uniform officers and troopers of the Department of Arkansas State Police . . . may, at any time, upon reasonable cause to believe that a motor vehicle is unsafe or not equipped as required by law or that its equipment is not in proper adjustment or repair, require the driver of such motor vehicle to stop and submit such vehicle to an inspection ...”

See also, Perez v. State, 260 Ark. 438, 541 S.W. 2d 915.

We, therefore, conclude that the initial stop and detention of appellant were justified and lawful.

THE PLAIN VIEW DOCTRINE

In Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, the United States Supreme Court reaffirmed the fundamental proposition that searches and seizures conducted without a warrant are unreasonable per se under the Fourth Amendment to the United,, States Constitution, subject, however, to a few established exceptions. See: Gordon v. State, 259 Ark. 134, 529 S.W. 2d 330.

However, in order for a seizure to be judged permissible under the plain view doctrine four standards must be met:

1. A valid instruction by police officers; and,
2. An inadvertent discovery; and,
3. An immediate recognition of contraband; and,
4. Exigent circumstances.

See, Rule 14.4, Arkansas Rules of Criminal Procedure, which provides:

“An officer who, in the course of otherwise lawful activity observes the nature and location of things which he reasonably believes to be subject to seizure, may seize such things.”

Wé conclude, that the four standards have been met by the state since the evidence clearly shows that the officer had a right to be in the position from where he viewed the contraband, the discovery was inadvertent and unanticipated, the officer’s training in narcotics and previous experiences in making arrests on marijuana violations enabled the officer to recognize immediately the vegetable materials and the cigarettes as marijuana, and finally, the appellant was a nonresident of the State of Arkansas enroute from Texas to Memphis, Tennessee. Consequently, the seized contraband from the passenger compartment of appellant’s vehicle was lawful.

THE CONSENT

It is well settled that a search that is conducted pursuant to consent does not violate the proscription against searches conducted without a warrant issued upon probable cause under the Fourth and Fourteenth Amendments to the United States Constitution. Davis v. U.S., 328 U.S. 582, 66 Sup. Ct. 1256; Schneckloth v. Bustamonte, 412 U.S. 218, 93 Sup. Ct. 2041. See, Rule 11.1 Arkansas Rules of Criminal Procedure which specifies:

“An officer may conduct searches and make seizures without a search warrant or other color of authority if consent is given to the search or seizure.”

After an officer took possession of the plastic box containing the marijuana cigarettes and the vegetable materials from the floorboard, appellant was advised that he was under arrest for possession of marijuana and was further advised of his rights. The officer informed appellant that appellant’s vehicle would have to be checked and further advised that this could be done with a search warrant or it could be done with appellant’s permission. Appellant voluntarily opened the trunk of his automobile where the officer discovered the 193.44 pounds of marijuana.

Appellant makes an extended attack upon the application of the concept of consent to the search and seizure of the marijuana from the trunk of his automobile by emphasizing in his brief:

“Consent to a search which amounts to a waiver of constitutional rights must be freely, voluntarily and knowingly made without duress or coercion in any manner. A mere showing of acquiescence to a claim of lawful authority is not enough; the consent or waiver must be shown by the state by clear and positive testimony and there must be proof that there was no duress or coercion either actual or implied.”

But appellant’s argument here is likewise neither convincing nor persuasive. In Schneckloth v. Bustamonte, supra, the United States Supreme Court observed:

“. . . we cannot accept the position . . . that proof of knowledge of the right to refuse consent is a necessary prerequisite in demonstrating a voluntary consent. Rather it is only by analyzing all of the circumstances of an individual consent that it can be ascertained whether in fact it was voluntary of coerced.”

In U.S. v. Faruolo, 506 F. 2d 490 (2d Cir. 1974), the Court held that no coercion was found when the officer told the defendant that he could refuse to permit a search, but a warrant would be obtained if he refused. See, U.S. v. Gavic, 520 F. 2d 1346 (8th Cir. 1975).

We conclude, therefore, that because of the prior experience of appellant, his age, intelligence and education, the consent given for the search of his trunk was voluntary and uncoerced.

The trial court having ruled that the evidence was admissible and from such evidence, the trial court concluded that appellant was guilty, we, therefore, find that there is substantial evidence to sustain the trial court’s finding of guilt.

ATTORNEY-TESTIFYING

The Arkansas Reports are replete with cases where this Court has registered its disapproval of an attorney testifying in an action in which he is an advocate. See: Canal Insurance Company v. Hall, 259 Ark. 797, 536 S.W. 2d 702 (1976); Watson v. Alford, 255 Ark. 911, 503 S.W. 2d 897 (1974).

In this action, one of appellant’s attorneys testified in behalf of appellant. We must again take this opportunity to reiterate strongly our disapproval of an attorney testifying in an action in which he is an advocate. An attorney who is to testify in an action should withdraw from the litigation. On the other hand, if an attorney is going to serve as an advocate for his client, he should refrain from testifying in the action.

Affirmed.

We agree. Harris, C.J., and George Rose Smith and Fogleman, JJ.

       It is conceded by the State that the right taillight assembly was not totally inoperative and a traffic citation was not warranted or intended. The officer simply wanted to advise the appellant of the malfunction and issue a compliance summons.

       Appellant is a college graduate, having majored in Criminal Justice and was an employee, at one time, as a counselor in a Tennessee penal institution. Moreover, appellant stated to the officer during the conversation relating to the search of appellant’s vehicle: “Yeah, I know, I’m a lawyer. I might as well open the trunk. You know what’s in there anyway.”

       The civilian passenger in the officer’s vehicle was a state employee who had made application for a position with the Arkansas State Police and was getting experience in"working traffic on state highways.


author: Carleton Harris, Chief Justice.

text:
    Richard ATKINSON et al v. BOARD OF TRUSTEES OF THE UNIVERSITY OF ARKANSAS ET AL
    77-98
    559 S.W. 2d 473
    Opinion delivered December 19, 1977
    (In Banc)

      Rose, Nash, Williamson, Carroll, Clay & Giroir, for appellants.

      Friday, Eldredge & Clark, by: Robert V. Light, for appellees.

      C. Dallas Sands, University of Alabama, for Association of American Law Schools, Amicus Curiae.

   Carleton Harris, Chief Justice.

This litigation refers to the constitutionality of Section 17 of Act 569 of 1975, effective July 1, 1975. The Act is entitled:

“AN ACT to Make an Appropriation for Personal Services and Operating Expenses of the University of Arkansas at Fayetteville for the Biennial Period Ending June 30, 1977; and for Other Purposes.”

Pertinent language from Section 1 states:

“There is hereby established for the University of Arkansas at Fayetteville for the 1975-77 biennium, the following maximum number of regular employees whose salaries shall be governed by the provisions of the Uniform Classification and Compensation Act, and all laws amendatory thereto, and by the provisions of the Regular Salary Procedures and Restrictions Act.”

The Act then sets out salaries for the various employees, and appropriations for various functions of the University.

Section 17 reads as follows:

“It shall be unlawful for any person employed by the School of Law of the University of Arkansas, who is employed as a professor, associate professor, or instructor, in a full-time position for which a regular salary of nine (9) months or more is established under this Act, to handle or assist in the handling of any law suit in any of the courts of this State or of the federal courts. It is the purpose and intent of this Act to require that professors, associate professors, and instructors who are employed on a full-time basis of nine (9) months or more by the School of Law of the University of Arkansas, shall devote their full time to their duties and shall not engage, either for hire or without payment, in the handling of, or assisting in the handling of, any law suits or litigation while so employed. Any person violating the provisions of this Section shall be relieved from employment immediately upon the determination of such violation, and shall forfeit all rights of tenure in the University of Arkansas.”

On April 2, 1976, twenty-one full-time present and former members of the faculty of the School of Law of the University of Arkansas at Fayetteville filed an action in the Pulaski County Chancery Court against the Board of Trustees of the University, and individually in their capacity as members of the board, the President of the University, and the Dean of the School of Law at Fayetteville, seeking a declaratory judgment that Section 17 was unconstitutional on its face. An injunction was sought prohibiting the enforcement of the section. After the filing of answers, the case was submitted to the court upon a stipulation with exhibits, and the deposition of Morton Gitelman, Professor of the School of Law at Fayetteville. Thereafter, the court entered its decree containing the following findings:

“1.
That Section 17 of Act 569 of 1975 is a valid exercise of the legislative power of the General Assembly.
2.
The prohibitions contained in that section are construed as not applying to or impairing the conduct of the persons affected which (1) constitute exercise of their rights of self-representation or (2) occur during periods intervening between the terms of their academic contracts, which periods include the summer vacation.
3.
The section is construed as not prohibiting the practice of law but only prohibiting that phase of such practice as constitutes handling of, or assisting in the handling of, any lawsuits or litigation, nor does it have any application to any person rendering uncompensated service to the University.
4.
The Court finds that it was the intention of the Legislature to regulate the conduct of all full-time law teachers at the University of Arkansas Schools of Law at both Fayetteville and Little Rock holding contracts of nine months or more and that the term ‘instructors’ is sufficient to extend coverage of the section to assistant professors.”

The complaint was dismissed, and from such decree, appellants bring this appeal. For reversal, eight points are asserted, but we think Point 1 is dispositive of the issue; actually there is an overlapping of Points 1 through 3. Accordingly, a discussion of other points will be omitted.

It is first contended that “The Trial Court erred in failing to find the statute denies appellants equal protection of the laws.”

The appropriation act lists six different positions which are applicable to the law school, together with maximum salaries authorized, as follows:

Distinguished Professor $34,000
Professor 32,000
Associate Professor 26,000
Assistant Professor 23,000
Instructor 19,000
Lecturer 10,000

Under Section 17, three of these classifications are permitted, without restriction, to practice law, and three are restricted. As noted in the provisions of Section 17, heretofore quoted, distinguished professors, assistant professors and lecturers are not covered by the prohibition, while professors, associate professors and instructors come within the provisions. There is nothing in the record which reflects the various duties of these different classifications; in fact, the stipulation recites:

“[TJhere is no substantial difference in the teaching duties, assignments and loads among professors, associate professors and assistant professors at either of the Schools of Law of the University of Arkansas, but there is a difference in qualifications, faculty committee assignments and salaries among the three positions.”

We are firmly of the opinion that the section is invalid as a violation of the Equal Protection Clause of the Fourteenth Amendment, the classification not being reasonable relative to the disparity which is shown, and hereafter mentioned, in several respects. This legislation does not qualify under the standard declared by the United States Supreme Court many years ago in Royster Guano Co. v. Virginia, 253 U.S. 412. There, the court said:

“It is unnecessary to say that the ‘equal protection of the laws’ required by the Fourteenth Amendment does not prevent the States from resorting to classification for the purposes of legislation. Numerous and familiar decisions of this court establish that they have a wide range of discretion in that regard. But the classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.”

In the 1969 case of Trister v. University of Mississippi, 420 F. 2d 499 (5th Cir.), the court held that while law school faculty members of the State University did not have an isolated constitutional right either to participate in the legal services program of the Office of Economic Opportunity, or to engage in part-time employment while teaching part-time at the law school, they did have the constitutional right to be treated no differently by a state agency than other faculty members of the law school, stating:

“Plaintiffs, however, do have the constitutional right to be treated by a state agency in no significantly different manner from others who are members of the same class, i.e., members of the faculty of the University of Mississippi School of Law. No such right exists in isolation.”

The most striking discrimination among law faculty members is shown by the fact previously mentioned; viz, that part of the law faculty is prohibited from the acts mentioned in Section 17, while other members of the law school faculty are unaffected by the provisions. The trial court simply found that the term “instructors” was sufficient to extend coverage of the section to “assistant professors.” Appellees state, “A strong inference can be drawn that this was simply legislative oversight and as such would support no finding of invidious discrimination.”

On the other hand, appellees argue that the activities of Professors James Gallman and Morton Gitelman in engaging in the practice of law may well have prompted the inclusion of Section 17 in the Act, and it is contended that these activities provided a justification for setting up the classifications under discussion, stating:

“However, the most prominent examples of the conduct at which the statute was aimed available to the legislature at the time it was enacted was that of two full professors (Gallman and Gitelman) and it was fully within its competence to narrow the classification to reach what it perceived to be the most urgent need.”

This argument, however, does not appear completely logical. Gitelman was, and is, a full professor, and Gallman (no longer employed) became a full professor at the time of the dispute among members of the faculty. The most notable distinction in the statute is that assistant professors can practice without legislative limitation, but associate professors are prohibited — yet, neither of these men was in that category. Accordingly, under appellees’ argument, why did not the General Assembly simply apply the Act to full-time professors, rather than including two other categories, associate professors and instructors? There is absolutely no basis in the record for distinction between these last two classifications and assistant professors.

It is interesting that the appellants likewise argue, for a different reason, that the disputed section “may well have been passed for the purpose of silencing Professor Gitelman” who had represented the defendant, Grant Cooper, in a suit filed by twenty-three members of the General Assembly. Of course, the purpose of this reasoning is to urge a violation of Gitelman’s First Amendment rights. This argument is entirely speculative, but at any rate, in Wiseman v. Madison Cadillac Company, 191 Ark. 1021, 88 S.W. 2d 1007, this court said:

“The intention of the Legislature, to which effect must be given, is that expressed in the statute, and the courts will not inquire into the motives which influenced the Legislature or individual members, in voting for its passage, nor indeed as to the intention of the draftsman or of the Legislature so far as it has not been expressed in the act.”

See also “Extrinsic Aids — Legislative History,” Sutherland, Statutes & Statutory Construction, § 48.17, (Sands 4th Ed., 1973), where it is stated:

“References to the motives of members of the legislature in enacting a law are uniformly disregarded for purposes having to do with its interpretation except as they are expressed in the statute itself.”

Likewise, it is very clear from the title of the Act and Section 1 of same that Act 569 of 1975 applied only to the faculty of the University at Fayetteville. The fact that President Bishop of the University construed it to apply to both law schools, and directed compliance, does not change the legislative act itself, and the chancellor’s finding that it was the intention of the legislature to regulate the conduct of all full-time law teachers at both schools of law located in Fayetteville and Little Rock, is not supported by the record. Probably the best evidence that Act 569 of 1975 did not, and was not meant to, apply to the law school at Little Rock, is the fact that a separate appropriation bill (Act 19 of 1975) was passed for “Personal Services and Operating Expenses” of the School of Law, University of Arkansas at Little Rock. This Act likewise sets out the salaries for the various law school faculty positions.

As previously indicated, we think it obvious that the trial court erred in finding that the term “instructors” is sufficient to extent coverage of the section to assistant professors, since, from the Act itself, it is apparent that these terms denote separate positions.

With the findings heretofore set out, there is no necessity to discuss other alleged errors.

Perhaps we should make it clear that we are not saying that a valid act on this subject cannot be enacted by the General Assembly, nor that the legislature cannot make logical classifications; indeed, our views are to the contrary. Certainly, the object or purpose of such legislation, i.e., to require law school personnel to devote full time to the duties for which they were employed, fosters a policy which cannot be said to be without merit, for when an individual accepts a position, he owes an obligation to fully perform the duties required, without hindrance from outside activities. Various agencies of government (and private businesses) prohibit outside employment, considering either that such employment interferes with satisfactory performance of the main occupation, or else presents a conflict of interest with the duties of the principal position.

Since we are holding that Section 17 is unconstitutional, there is no point in remanding the case to the Pulaski County Chancery Court for an injunction.

Reversed.

Byrd, J., not participating.

       Wylie H. Davis, Dean of the School of Law, a party plaintiff, was also a defendant since the authority for the employment of the faculty of the School of Law had been delegated to him by the President of the University (the President having been delegated by the Board of Trustees to employ members of the faculty).

       Of course, the appropriation for the different categories applies to the faculty members of all the various colleges in the University.

       It goes without saying that, to practice law in this state in any respect, all must be licensed in Arkansas.

       The Supplemental Abstract includes the full history of the dispute between then Dean Barnhart and Gallman with other members of the law faculty concerning the activities of Gallman in practicing law and appellees’ brief also comments that Gitelman has been active counsel of record in several suits which have required him to reschedule classes when away from Fayetteville (this is supported by the record), and also involved in challenging the validity of a statute of the State by which he is employed.

       The invalidity of this section does not affect the validity of Act 569 of 1975. See Levy v. Albright, 204 Ark. 657, 163 S.W. 2d 529, where this court said:
      “Where, therefore, a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in the subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be presumed the Legislature would have passed the one without the other ... If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained ...”


text:
    Larry Sid LUMPKIN v. Linda (Lumpkin) GREGORY
    77-106
    559 S.W. 2d 151
    Opinion delivered December 19, 1977
    (In Banc)

      Napper, Hardin & Wood, by: G. Steven Napper, for appellant.

      Daggett, Daggett & Van Dover, for appellee.
   Carleton Harris, Chief Justice.

Appellant, Larry Sid Lumpkin, seeks to have visitation rights spelled out as to Larry Sid Lumpkin, Jr., his son by appellee Linda Lumpkin Gregory, the now divorced wife of appellant. Appellant contends such rights have been unduly denied him in the past by appellee, but the chancellor found otherwise, and denied relief. From such order comes this appeal.

On April 10, 19*73, appellant and appellee were divorced, with appellee retaining custody of the child, Larry Sid Lumpkin, Jr., (then age 5), subject to reasonable visitation privileges. The decree likewise provided for reasonable support payments each month.

Testimony on the part of appellee was to the effect that appellant has never made any payments of support for his son other than on one occasion paying the tuition for a private school in the amount of $200. She stated that her ex-husband would get the child, keep him for three weeks and then refuse to bring him homfe; that when she would go to get him, Lumpkin would “slap me around the yard” and several days later he would return the boy to her home; that the length of time he would keep him was very much against her wishes.

She mentioned an incident involving her youngest sister:

“Well, for one thing he had a habit of indecent exposure, and one of these particular instances 1 witnessed myself. My youngest sister was in the bedroom, sitting on Sid’s bed talking to Sid, and I went back there to say something to her — and I noticed that she looked kind of funny and was holding her head down looking at the floor, and when I looked up I saw that Larry was standing in the bathroom with the door open and he was completely nude and his penis was erected.”

The “straw that broke the camel’s back” so to speak was an incident when appellant picked up the boy at the church parking lot, while the latter was riding his bicycle. The father then drove by the house to advise that he had the child, and, according to appellee, when the car stopped, the boy endeavored to jump out, at which time the father grabbed him and pulled him back into the seat. Her husband ran out and appellant “jumped him.” A neighbor came to the assistance of her husband and a general fight ensued. She said that the boy was very upset, objected strenuously to visiting the father, was thereafter afraid to go places where his father might pick him up, and was even reluctant to talk to him over the telephone. After this incident there was no further visitation at all. She also testified that her ex-husband would call, and when child support was mentioned, would advise that he was not going to pay any child support, and wouldn’t have to because he did not have a job.

Susan McIntosh, the sister of appellee, testified that after her sister and Lumpkin were married, he would come to her father’s house to visit, and that when he thought she was alone, he would corner her, put his hands all over her, and try to make her feel of him; that when she was about 15, he forced himself on her in the bedroom, always unzipped, and would try to make her look at him.

Appellant’s version was that he had contacted appellee’s attorney on several occasions to try and arrange with her proper support payments. To this testimony, appellee stated that she had been contacted by her original attorney, but only as to trying to arrange visitation rights; that she did not recall any discussion relative to support payments. His version of the incident in front of the Gregory home was likewise different. He stated that the mother came out, snatched the child, and he got out of the car into the street; that the husband and Blackburn then came after him. Lumpkin admitted that he had taken the little boy to a pool hall on one or two occasions “when there was no one else in there so he could get in there and roll the balls around on the table.” While he acknowledged that he received an injured hand in a fight at the pool hall, he denied that the boy was present at the time. It was his contention that the boy was fearful of him simply because his ex-wife and her present husband had instilled the fear into the child. Lumpkin testified that he had only worked six months in the last year and a half, but that he had offered to pay his wife a lump sum of $500 for child support, but she refused the offer.

It would appear from the evidence that appellant has had some difficulty in holding a job (which his wife stated had been true since their marriage), and, because of unemployment, the chancery court did not order any support payments. Of course, as a usual matter, a parent is entitled to visitation rights with his, or her, child, though there are situations in which this right is forfeited. Here, the chancellor saw and heard all of these witnesses, and thus had an opportunity to make an evaluation that this court does not have. In Wilson v. Wilson, 228 Ark. 789, 310 S.W. 2d 500, we commented that, “We know of no type of case wherein the personal observations of the court mean more than in a child custody case” — and this would also be true when visitation rights are involved. In addition, the court talked with the little boy in chambers and after the conclusion of the case, rendered findings, inter alia, as follows:

“Here the father has not supported the child for the past extended period and has not seen him until recently within two years. His recent contacts with the child have been under circumstances which naturally tend to cause the child concern. As a result of all this the child fears him and has no desire to know him.”

The Court felt that the best interest of the child would not be fostered by forced visitation at the present time.

Of course, appellant has the right, upon a showing that circumstances have changed, to again, at some future time, seek a revision of the order.

Affirmed.

Byrd, J., not participating.

       Appellant was fined $200 for disturbing the peace, and the neighbor was also fined.