author: Sam Bobinson, Associate Justice. Ed. P. McPaddin, Associate Justice

text:
    Rush v. State.
    5095
    379 S. W. 2d 29
    Opinion delivered May 18, 1964.

      Hardin, Barton and Hartón, for appellant.

      Bruce Bennett, Attorney General, By Jerry L. Patterson, Asst. Atty. Gen., for appellee.
   Sam Bobinson, Associate Justice.

Appellant, Fred Bush, hereinafter sometimes referred to as Fred, has appealed from a conviction of murder in the first degree resulting in a life sentence in the penitentiary for the alleged killing of his step father, Paul Bush, hereinafter sometimes referred to as Paul, who was also Fred’s adoptive father. The State’s theory of the case is that Fred, his cousin Baymond Wood, and Carolyn Brown, entered into a conspiracy to kill Paul, and did kill him about 11 p.m. on May 13, 1962.

The State contends that in carrying out the conspiracy, in the early part of the night of May 13, Fred went by the V & B Sales Company, a furniture factory operated by the Bush family in Ft. Smith, and intentionally left a light burning on the third floor of the building; that later, in accordance with the plans of the conspirators, he drove by the building with his wife, and his children by a former marriage, and pretended to discover the light burning; that he then went to the apartment of his father, Paul, who was at the time separated from Fred’s mother, and inveigled him into going to the factory with appellant to investigate the reason for the light burning; that in furtherance of the conspiracy, Baymond Wood was hidden in the building armed with a .22 caliber rifle waiting to kill Paul; that Carolyn Brown was waiting for Wood in an automobile outside the factory to enable him to escape after having killed Paul; that Wood did kill Paul and was driven away from the scene by Carolyn as planned; that in addition to killing Paul by shooting him in the neck with a .22 caliber rifle, Baymond shot Fred in the shoulder to allay any suspicion that Fred was in any manner involved in the killing.

Immediately after the killing, Fred was taken to a hospital and while there he was questioned by officers of the law.

Pat Taylor, a paramour of Fred’s, was living in a motel in Ft. Smith with her cousin, Carolyn Brown. The next day, after the killing, Pat Taylor, Baymond Wood and Carolyn Brown were questioned by officers; the questioning continued from time to time for months; they denied any knowledge of the killing.

Fred appears to be pretty much a libertine; although he was married and was living with his wife, he was keeping Pat Taylor. About nine months after the murder of Paul, Fred quit Pat Taylor and began to bestow his affections on one Louise Bromley. Along about the first of February, 1963, he left Ft. Smith with Louise Bromley and Carolyn Brown. They went to Houston, Texas, where they all lived together in an apartment.

About a month after Fred left for Houston with Carolyn Brown and Louise Bromley, and after first conferring with one Burnside, a professional bondsman and private detective, who had been engaged by the heirs of Paul, Pat went to the law enforcement authorities and told them that Fred, Raymond "Wood and Carolyn Brown had conspired to kill Paul; that the plans to carry out the conspiracy had been worked out in her (Pat’s) apartment in her presence. The arrest and conviction of Fred followed.

On appeal, appellant first contends that the court erred in refusing to grant a change of venue. At the hearing on the petition for change of venue it was shown that a local newspaper had given extensive coverage to the testimony of Pat Taylor and Bill Irons, witnesses for the State, who had’ testified at the preliminary hearing, and that there was great interest in the case all over the county. Attached to appellant’s petition for a change of venue were the affidavits of about twelve residents of Sebastian County not related to the defendant. The substance of the affidavit is that the defendant could not get a fair and impartial trial in the county. The affiants appeared at the hearing on the petition and gave sworn testimony verifying what was said in the affidavits. There is no indication that any of the affiants is not a person of good character. The State offered no counter-affidavits and no.rebuttal testimony.

Prior to tire adoption of Initiated Act No. 3, adopted by tbe voters in 1936, our change of venue statute read: “Such order of removal shall be made on the application of the defendant by petition setting forth the facts verified by affidavit, if reasonable notice of the application be given to the attorney for the State, and the truth of the allegations in such petition be supported by the affidavits of two credible persons who are qualified electors, actual residents of the county and not related to the defendant in any way.” C. & M. Digest (1921), § 3088.

This court has held that under the provisions of the foregoing statute the only issue to be decided on a petition for change of venue is the credibility of the affiants. The allegation of inability to obtain a fair trial could not be controverted. Dewein v. State, 120 Ark. 302, 179 S. W. 346; Strong v. State, 85 Ark. 536, 109 S. W. 536. It was also held that a credible person, within the meaning of the statute, is one who has knowledge of the feeling of the people throughout the county and is not merely a person ordinarily considered to be worthy of belief. Duckworth v. State, 80 Ark. 360, 97 S. W. 280; Speer v. State, 130 Ark. 457, 198 S. W. 113; Williams v. State, 162 Ark. 285, 258 S. W. 386; Hedden v. State, 179 Ark. 1079, 20 S. W. 2d 119.

As heretofore mentioned, the change of venue statute was revised by Act No. 3. The statute now provides for the filing of counter-affidavits and the taking of testimony on the truth of the facts set out in the original affidavits, and provides that the court shall grant or refuse the petition according to the truth of the facts alleged in it and established by the evidence. Ark. Stat. Ann. § 43-1502 (1947). And this is the method that has been used since the adoption of Act. No. 3. Lauderdale v. State, 233 Ark. 96, 343 S. W. 2d 422; Perry & Coggins v. State, 232 Ark. 959, 342 S. W. 2d 95.

In Leggett v. State, 227 Ark. 393, 299 S. W. 2d 59, hundreds of veniremen had been examined for the trial on the merits before the filing of the petition for change of venue, and the jury was almost complete. From the testimony of the veniremen, previously heard, the court was able to reach the decision that the defendant could obtain a fair and impartial trial in the county.

In Robertson v. State, 212 Ark. 301, 206 S. W. 2d 748, the court said: “. . . The jurisdiction of trial courts has been enlarged to permit inquiry which before the adoption of Initiated Act No. 3 was not permissible. Pursuant to this enlarged authority the court heard the testimony of other Avitnesses besides that of the supporting affiants and announced the conclusion that appellant could obtain a fair trial in that jurisdiction. We may therefore revieAv only the exercise of the judicial discretion vested in the court and in view of the conflicts in the testimony, we are unable to say that any abuse of this discretion was shown.” (Emphasis added.)

In the case at bar there is no conflict in the testimony on the petition for change of venue. As heretofore mentioned, the State produced no affidavits and no witnesses on the question, and we cannot say that the court did not abuse its discretion in denying the petition for change of venue. We, therefore, hold that appellant is entitled to a change of venue.

On voir dire examination, the talesman C. E. Laws, stated that he rented a building to the V & R Sales Company (the Rush Company), and had discussed the case with an employee of that company; that such employee Avas listed as a witness, and that he (the venireman) had an opinion which would take evidence to remove, but that he could set aside the opinion and try the case on the evidence introduced at the trial and the instructions of the court. The defense challenged the venireman for cause; the court held that he Avas qualified; exceptions Avere saved.

In numerous cases this court has held that although a venireman has formed an opinion, from rumor and the reading of newspapers, that would take evidence to remove, he is qualified if he can go into the jury box and give both the State and the defendant a fair and impartial trial and base his verdict only on the evidence introduced in the case and instructions of the court. Hardin v. State, 66 Ark. 53, 48 S. W. 904; Ham v. State, 179 Ark. 20, 13 S. W. 2d 805; West v. State, 150 Ark. 555, 234 S. W. 997; Niven v. State, 190 Ark. 514, 80 S. W. 2d 644. There it was pointed out that the venireman had not talked with any witness; Howell v. State, 220 Ark. 278, 247 S. W. 2d 952; Leggett v. State, 227 Ark. 393, 299 S. W. 2d 59. In Lauderdale v. State, 233 Ark. 96, 342 S. W. 2d 422, it was pointed out that the venireman had not talked to a witness.

But we have been cited to no ease, and we have found none, holding that one is qualified to serve on a jury who has talked with a witness in the case and has formed an opinion that would take evidence to remove. We have at least two cases holding to the contrary. Caldwell v. State, 69 Ark. 322, 63 S. W. 59; Lane v. State, 168 Ark. 528, 270 S. W. 974. The court erred in holding the venireman, Laws, to be qualified to serve as a juror.

Carolyn Brown testified as a witness for the defense. She stated that on the night of the killing she and Raymond Wood had a date; that they drove to the top of a nearby hill and while there they fired a .22 pistol at some cans. From the record it appears that Wood had borrowed the pistol from appellant, who had a collection of guns. The prosecuting attorney had possession of the pistol in question. On cross-examination of Carolyn, she identified the pistol; over defendant’s objection, the State was allowed to introduce it in evidence.

. The State concedes that ballistic tests had been made and the pistol was not the weapon used in killing Paul Rush. But the State contends that the fact that Carolyn Brown and Raymond Woods had the pistol in some way corroborates Pat Taylor, and that the pistol was, therefore, admissible in evidence; but nowhere is it pointed out in what manner the pistol in any way corroborates Pat Taylor, and we have not discovered from the record how the pistol corroborates her. The pistol in question is very heavy for a .22 caliber; it has a 9-inch barrel, and is rather wicked looking. The very fact that the pistol was admitted in evidence conld have had a tendency to confuse the jury, notwithstanding there is no contention on the part of the State that the pistol was used in the killing. In these circumstances we do not think the pistol was admissible in evidence. Everett v. State, 231 Ark. 880, 333 S. W. 2d 233.

According to the testimony of Pat Taylor, she was, as a matter of law, .an accessory before and after the fact to the killing. She testified that preparations were made in her apartment for the killing; that Raymond Wood’s hair was dyed by Carolyn Brown; that appellant cut strips of adhesive tape to put on automobile tires to disguise the tire tracks, and an automobile license number was changed, all in her apartment; that after the killing she assisted in removing evidence of the dye which she said had been on Wood’s hair. These facts constitute her as an accessory. Froman v. State, 232 Ark. 697, 339 S. W. 2d 601. There is no distinction between an accessory before or after the fact and a principal. Ark. Stat. Ann. § 41-118 (1947).

By Instruction No. 7, dealing with the requirement that an accomplice must be corroborated, the court left it to the jury to say whether Pat Taylor was an accomplice. The appellant argues that the court should have told the jury that as a matter of law she was an accomplice. The instruction is not inherently erroneous and appellant made no specific objéction; therefore, the point was not preserved for consideration on appeal.

Other points are argued which we do not discuss because they are not likely to occur at a new trial.

Por the errors indicated, the judgment is reversed and the cause remanded for a new trial.

McFaddin, J., concurs.

Ed. P. McPaddin, Associate Justice

(concurring). I agree that the judgment of the Circuit Court should be reversed (a) because of the juror, C. E. Laws; and also (b) because of tbe admission of tbe pistol. Both of these matters are clearly stated in the Majority Opinion.

But I do not agree with the holding of the Majority in regard to change of venue. I am firmly of the view that when á defendant moves for a change of venue he has the burden; and if his witnesses fail to establish his claimed change, then the Court can so hold. In this case I think the defendant’s witnesses failed to establish the defendant’s right to a change of venue; and I think the Circuit Court was correct in refusing the change of venue.


source: Caselaw Access Project

author: Sam Robinson, Associate Justice.

license: Public Domain

text:
    Herrington v. Hall.
    5-3277
    381 S. W. 2d 529
    Opinion delivered May 18, 1964.
    [Rehearing denied September 21, 1964.]

      Max Smith and Paul K. Roberts, for appellant.

      George H. Holmes and George N. Holmes, for appellee.
   Sam Robinson, Associate Justice.

In September, 1962, an initiated petition to adopt a countywide stock law, purported to have been signed by 465 qualified electors, was filed with the County Clerk of Cleveland County. Acting under authority of Ark. Stat. Ann. § 2-303 (Repl. 1956), the Clerk certified the petition as sufficient to the County Board of Election Commissioners. Oil October 1, 1962, appellants herein filed a complaint in the Cleveland Chancery Court attacking the sufficiency of the petition and asking that the defendants be enjoined from placing the measure on the ballot for the election to be held on November 6.

On October 3, 1962, the plaintiffs gave notice to the defendants that there would be a hearing on the petition, by the court, on October 8. On October 8 the defendants filed a motion to quash and dismiss the complaint. There was no hearing on October 8 on the original complaint or the motion to dismiss. The record is completely silent as to the reason the issues were not presented to the court. In fact, there is no showing that any attempt was made to have a hearing on the complaint or the motion.

The measure was placed on the ballot; the election was held on November 6; the vote was 939 in favor of the stock law and 775 against it.

On December 31, 1962, appellants herein, who are the same persons who filed the original suit on October 1, 1962, filed a second suit making the prosecuting attorney of the district, the sheriff, and the County Judge of Cleveland County parties defendant. The second suit alleges insufficiency of the petition for the election, and asks that the defendants be enjoined from enforcing the stock law adopted at the November election. The first suit was considered as being consolidated with the action filed on December 31. A full scale hearing was held. The chancellor held in favor of the petition; the plaintiffs — those attacking the petition for the election — have appealed.

First, appellants argue that the trial court erred in not holding a hearing on the original petition prior to the election on November 6. The record does not show that appellants requested the court to try the case, and there is no record of any objection to the failure of the. court to grant a trial. Furthermore, the failure of the court to decide the case prior to the election did not affect the validity of the election. Amendment No. 7 to the Constitution — the I & R Amendment — provides: “If the sufficiency of any petition is challenged such cause shall be a preference cause and shall be tried at once, but the failure of the courts to decide prior to the election as to the sufficiency of any such petition shall not prevent the question from being placed upon the ballot at the election named in such petition, nor militate against the validity of such measure, if it shall have been approved by a vote of the people.”

■ In arguing that the petition for the election is invalid, appellants contend that five of the petitions circulated for signatures of electors áre invalid because they have no verifying affidavits; that others have false and fraudulent affidavits attached; that some are signed by persons other than those whose signatures they purport to be; that the trial court erred in admitting evidence as to the true identity of some of the signers of the petition. All of these points have to do with the sufficiency of the petition for the election.

The sufficiency of the petition cannot be questioned after the election. This court said in Beene v. Hutto, 192 Ark. 848, 96 S. W. 2d 485: “It, therefore, appears that after a question is submitted to and voted upon by the people, the sufficiency of the petition is of no importance. It is not important because, whether sufficient or insufficient, if the measure is adopted by the people at the election, it becomes the law . . .”

Appellants further maintain that the stock law measure adopted by the people of Cleveland County conflicts with Ark. Stat. Ann. § 41-430 (1947) which prohibits the running at large of certain livestock on the public highways. We can see no conflict between the measure under consideration and the aforesaid statute.

Affirmed.


author: Jim Johnson,' Associate Justice.

text:
    Southern Farm Bureau Cas. Ins. Co. v. Robinson.
    5-3264
    379 S. W. 2d 8
    Opinion delivered May 18, 1964.

      Cochrill, Laser, McGehee $ Sharp, for appellant.

      Murphy é Arnold, for appellee.
   Jim Johnson,' Associate Justice.

This appeal arises after entry of a nunc pro tunc order following an earlier appeal to this court. In 1958 appellee Bartis Robinson was injured in an automobile accident in Illinois, while riding as a passenger in a car driven by Forrest B. Booth, an Arkansas resident and an insured of appellant Southern Farm Bureau Casualty Insurance Company. After the accident, Booth returned to Arkansas. Appellee sued Booth in Illinois and obtained a default judgment against Booth for $20,000. Appellant insurer had appeared to defend Booth and then withdrew from the case prior to the defaulted judgment. The Illinois judgment was reduced to an Arkansas judgment on January 2, 1961. After an execution issued against Booth was returned unsatisfied, appellee filed suit directly against appellant under the authority of our ‘ direct action statute,” Ark. Stat. Ann. § 66-526, since repealed and replaced by Ark. Stat. Aim. § 66-4002 (Supp. 1963). Following a jury verdict, judgment was obtained by appellee against appellant. The jury failed or refused to award interest and the court thereafter granted appellee’s motion for judgment notwithstanding the verdict to include interest. From the judgment, which totaled $9,637.55, appellant appealed to this court. See Southern Farm Bureau Casualty Ins. Co. v. Robinson, 236 Ark. 268, 365 S. W. 2d 454, for additional factual background in this involved litigation as well as the law of that case. This court held, inter alia, that appellee was entitled as a matter of law to interest if he was entitled to a judgment, citing the mandatory tenor of Ark. Stat. Ann. § 29-124 (Repl. 1962).

This court’s mandate was filed in Independence Circuit Court on April 9, 1963, and thereafter appellant tendered to appellee the sum of $9,637.55 with six percent interest on that sum from October 26, 1961. Appellee refused this tender, insisting that he is entitled to the $9,637.55 plus interest computed on the entire $20,000 original judgment. Appellee filed a motion for order nunc pro tunc, alleging that there was an ambiguity or a scrivener’s error in the judgment affirmed by this court. At hearing on the motion on September 25, 1963, the trial court found and held:

“On or about 1/29/62 this court advised counsel by letter that the motion for judgment notwithstanding the verdict was being granted.. This ruling announced by letter, was intended to mean just exactly what it said, ‘that the motion was granted.’ There was no limitation in the ruling, and the court has the very distinct recollection that it was the court’s intention at that time that the interest be computed until paid on the amount of the Illinois judgment, which was $20,000.00. It was not until the filing of this motion for order and judgment nunc pro tunc on interest that the court became aware that counsel for the plaintiff had committed a scrivener’s error in the precedent submitted to the court, and by doing so did not prepare a judgment which spoke the truth.

“Wherefore, the court orders that the judgment of 1/2.9/62 he corrected to speak the truth nunc pro tunc.

“Wherefore, it is considered, ordered and adjudged that interest be computed on $20,000.00 at the rate of 6r/o per annum from October 26,1961, until date of tender of the correct amount of the judgment and interest, in addition to the other sums for which judgment was entered by the court on January 27, 1962, and that execution or other appropriate process may be issued therefor, and this judgment having been made on the 27th day of January, 1962, and it inadvertently omitted from the records, it is entered nunc pro tunc. ’ ’ From this order, appellant has prosecuted this appeal urging that the trial court erred in granting appellee’s motion for order and judgment nunc pro tunc on interest.

There can be little doubt about the power of a trial court to entertain and grant an order nunc pro tunc, Fitzjarrald v. Fitzjarrald, 233 Ark. 328, 344 S. W. 2d 584, even during or after appeal, Davie, Executrix v. Smoot, 202 Ark. 294, 150 S. W. 2d 50; Chronister v. Robertson, 208 Ark. 11, 185 S. W. 2d 104. As stated in Wright v. Ford, 216 Ark. 55, 224 S. W. 2d 50:

“The common law rule that no judgment can be amended after the term at which it is rendered has been modified so that where the entry through some plain error fails to correspond with the judgment that was actually rendered, the court can at a later term correct the judgment, but there is no authority to revise a judgment, or to correct a judicial mistake, or to adjudicate a matter which might have been considered at the time of trial, or to grant' an additional relief which was not in the contemplation of the court at the time the judgment was rendered.”

A careful review of the record of this and the earlier appeal as well as our prior opinion fails to impeach the credibility of the distinguished trial judge’s statement in the nunc pro tunc order that “it was the court’s intention at that time that the interest be computed until paid on the amount of the Illinois judgment, which was $20,000.00.” Such interest was prayed for in the complaint and in the motion for judgment n. o. v. and was mentioned again in the alternative motion for new trial. The trial court granted this prayer without reservation. The attorney who prepared the precedent clearly made a scrivener’s error. The state of the record being thus, the trial court properly granted the motion for an order nunc pro tunc to cause the judgment to speak the truth. United Drug Co. v. Bedell, 164 Ark. 527, 262 S. W. 316.

It follows, ergo, that appellant’s tender of less than the total amount due failed to toll the running of interest. Appellant’s “mistake in tendering an amount less than the sum due is the misfortune of the tenderer, the tender having no legal significance if refused, and the position of the parties remains the same as though no tender had been made.” 86 C.J.S., Tender, § 7, p. 562; 52 Am. Jur., Tender, § 39, p. 243; River Valley Cartage Co. v. Hawkins-Security Ins. Co., 17 Ill. 2d 242, 161 N. E. 2d 101, 76 A.L.R. 2d 978.

Affirmed.

       See also 76 A.L.R. 2d 983 and 1964 Supp. Service, Liability insurer’s liability for interest and costs on excess of judgment over policy limit, §§ 3, 4.


author: Frank Holt, Associate Justice.

text:
    Woolard v. Thomas, County Judge.
    5-3292
    381 S. W. 2d 453
    Opinion delivered May 18, 1964.
    [Rehearing denied October 5, 1964.]

      E. L. Holloway, for appellant.

      Dermis L. Berry, for appellee.
   Frank Holt, Associate Justice.

The appellant, as a taxpayer, filed a petition in the Circuit Court seeking a declaratory judgment as to the constitutionality of Act 239 of 1953 [Ark. Stat. Ann. § 17-920 — 21 (Eepl. 1956)]. This petition was consolidated with an appeal from the action of the Clay County Court, Western District, denying appellant’s petition,"as a taxpayer, in that court. Appellant’s petition in the County Court, based upon Act 239 of 1953, stated an emergency existed because of the destruction of the Western District Courthouse by fire and because of the state of disrepair of the Western District Jail. The appellant petitioned the County Court to call an election pursuant to Act 239 of 1953 to determine whether the electorate of the Western District of Clay (Aunty would approve the construction of a courthouse and jail for that district and to levy a property tax only in the Western District of Clay County to pay for the proposed construction of the courthouse and jail as provided in Act 239. Also, the appellant alleged that approximately $17,000.00 had been paid to Clay County as insurance proceeds for property loss resulting- from the destruction of the Western District County Courthouse and such proceeds should be credited in a special account and used only for the construction of a new courthouse in the Western District and should not be commingled with the Clay County General Funds.

The Circuit Court affirmed the action of the Clay County Court in denying appellant’s petition and held Act 239 of the Acts of 1953 unconstitutional insofar as the act authorizes a tax levy exclusively on property within one of two judicial districts within a single county to finance the construction or reconstruction of a courthouse or jail within the judicial district; and that the insurance funds in question were properly paid into the Clay County General Fund for appropriation and expenditure by the county. For reversal appellant first contends that the court erred in holding Act 239 of 1953 unconstitutional.

By Act 14 of 1881 Clay County is divided into two separate judicial districts, the Eastern and Western. This act also provides that all revenues from all sources shall be used for the exclusive benefit of the district in which the revenues arise. Act 239 of 1953 provides, inter alia, that where a county is divided into two judicial districts the qualified electors in each district have the power and the right, upon a finding of need by the County Court, to hold an election limited to that district for the purpose of approving the construction, reconstruction, or extension of a county courthouse and jail and the levying of an ad valorem tax solely upon the property in that judicial district to finance such construction.

We agree with the trial court in holding the act in question unconstitutional. The levy of a tax for a county purpose must be uniform on all the property of the county. Article 16, § 5, Arkansas Constitution of 1874. As to the construction or reconstruction of a county courthouse or jail, Amendment 17 of our Constitution vests the power and right of approval in the qualified electors of each county.

The case of Hutchinson v. Ozark Land Co., 57 Ark. 554, 22 S. W. 173, arose from Clay County, also, and presented the question of the right of the County Court, in levying a tax, to fix a different millage for the Western and Eastern Districts of the county. In construing Act 14 of 1881, which created the two separate judicial districts,, we held that it was unconstitutional and in conflict with Article 16, § 5 of our Constitution insofar as it attempted to create two separate taxing districts in Clay County. There we said:

£ £ # * * But it was not within the power of the legislature to create a district for the levy of the tax in question that did not embrace the whole county. The tax was for a county purpose, and its burden could not be imposed upon a part only of the county’s territory.

If the taxes levied in the two judicial districts of Clay county were not county taxes within the meaning of the constitution, then the county court had no power to levy them, and they were for that reason illegal. But if they were levied for county purposes, that made them county taxes, and the nature of such taxes required them to be imposed by a levy applicable to the entire county. Cooley, Taxation, 141, 152; Pulaski County v. Reeve, 42 Ark. 56. The expense of maintaining two judicial districts in a county is necessarily a county expense, and the revenue to pay it can be raised only by a county tax. Such a tax, to be valid, must be levied at a uniform rate upon all the taxable property of the county. Article 16, § 5, const.; * * * in determining this cause it is sufficient to say that these provisions cannot be treated as having created separate taxing districts without holding that they impair the unity and power which the constitution secures to Clay county as a political sub-division of the State.”

Thus, we have clearly held that the levying of a county tax for county purposes must be uniform upon all property within a county and, therefore, a tax levy for a county purpose limited to a judicial district of that county is unconstitutional.

The levying of a tax for the construction of a courthouse is a tax levy for county purposes. In Williams, et al, v. Arkansas County Courthouse Improvement Distict, et al, 153 Ark. 469, 240 S. W. 725, we said:

“If the expense of holding the courts and otherwise maintaining two judicial districts in a county is a county expense, it would seem that it necessarily follows that the erection of a courthouse for the use of such district would also be a county expense.” [Emphasis added.] It must be said that the construction or reconstruction of a district courthouse or jail is a matter of county-wide interest and responsibility and any tax levied for such a purpose is a tax levy for a county purpose.

The appellant next contends that the court erred in holding that the insurance proceeds paid to the county due to the burning of the Western District Courthouse should be placed in a special account and not credited to the County General Fund. In Hutchinson v. Ozark Land Company, supra, we said:

“All the affairs of the two districts are concerns of the county, and the expenses incurred in both, whether in the holding of courts or otherwise, constitute demands against the county; and a creditor of the county is not bound to look for payment alone to the district in which his claim arises. His claim being a debt of the county, a warrant issued upon its allowance is a county warrant, and as such the constitution makes it receivable for county taxes, const, art. 16, § 10. It is difficult therefore to see what effect can be given to the financial provisions of the act quoted above.”

We agree with the trial court that the insurance proceeds in question were lawfully and properly paid into the County General Fund for appropriation and éxpenditure as county funds.

The judgment is affirmed.


author: Carleton Harris, Chief Justice.

text:
    Langford v. Gates.
    5-3292
    381 S. W. 2d 456
    Opinion delivered May 25, 1964.
    [Rehearing denied September 14, 1964.]

      W. R. Kitchens, Jr. and Melvin Chambers, fdr appellant.

      Joe D. Woodward and Rarry Grumpier, for appellee.
   Carleton Harris, Chief Justice.

This litigation involves the validity of a codicil, executed by Mrs. Hattie R. Gates. On March 28, 1947, following the death of her only child, and only descendant, Mrs. Gates executed a will, leaving all of her property to her husband, Walter L. Gates, appellee herein. Mr. Gates was Mrs. Gates’ second husband, and the stepfather of her deceased daughter. On April 16, 1956, Mrs. Gates executed a codicil to her will, under which, at the death of her husband, all her property was devised to Harriet Langford “and the heirs of her body, who are William John Mitchell and R. Reed Mitchell.” Mrs. Gates, 76 years of age, died on August 21, 1962, and appellee, then 75 years of age, offered her will for probate. The value of the estate was listed as $500.00 for the real property and $500.00 for the personal property. The only heir of the deceased was W. O. Roberts, a brother, 75 years of age. Proof of Will was executed by two attesting witnesses, Wade Kitchens and Mrs. L. E. Adkins, Sr. Thereafter, appellant, Harriet Langford, for herself, and as natural guardian and next friend for her children, filed a petition for probate of the codicil heretofore referred to. The petition to admit the codicil was heard by the Probate Court, and, after a number of witnesses had testified, the court found that shortly after the death of decedent’s daughter, Mr. Langford started corresponding with Mrs. Gates, and led the latter to believe that she (appellant) was a medium, capable of communicating with deceased persons, including the deceased daughter; that subsequently Mrs. Langford, and two minor sons moved to Columbia County.

‘ ‘ That throughout the acquaintanceship of the decedent and the Respondent, Harriet D. Langford, the Respondent continued to conduct purported seances, meetings and conversations between the decedent and her deceased daughter and other deceased relatives and continued to advise the decedent through her purported clairvoyant powers and that as a result of the same, the Respondent had complete power, control and total influence over the decedent.
‘ ‘ That shortly before the decedent executed the purported codicil to her last will dated the 16th day of April, 1956, the Respondent advised the decedent that she was able to foretell that the decedent and her husband, the Petitioner herein, would die together as a result of a common disaster and that the decedent’s brother would inherit the decedent’s estate against the decedent’s wishes.
“That as a result of this advice the decedent made and executed the codicil to her last will dated April 16, 1956, and that the execution of same was a direct result of the Respondent’s undue influence.”

In accordance therewith, the court entered its judgment, finding that the codicil was induced hy undue influence, and same was set aside, voided, and held for naught. From this judgment, appellants bring this appeal.

To properly understand the issue, it is necessary that a background of the facts leading to the litigation be set out. The evidence reflects that the daughter of Mrs. Gates, whose name was Harriet Wilkes (affectionately termed “Babe” by her family and friends), lived in California at the time of her death, but prior thereto had become acquainted with appellant in Portland, Oregon, in 1916. According to appellant, she (appellant) was a stenographer in a real estate office, and Mrs. Wilkes came to the office to see appellant’s employer on business. While waiting, Mrs. Wilkes commenced talking with Mrs. Langford (at that time Mrs. Langford’s married name was Mitchell). The two discovered that they had the same name (Harriet), and both were interested in the Spiritualist religion. Thereafter, they attended church together several times, and became good friends. Mrs. Langford (Mitchell) moved to Minnesota, but maintained a correspondence with Mrs. Wilkes. One of the letters written by Mrs. Langford was returned by Mrs. Wilkes’ secretary with a note that Mrs. Wilkes had died, and the address of her mother in McNeil was given. Appellant wrote to the mother, and the latter promptly responded, requesting information about her daughter and the association between the two. Thereafter, a steady correspondence was maintained, and finally Mrs. Langford invited Mrs. Gates to visit her while appellant’s husband was in Korea. Mrs. Gates accepted the invitation, and spent six weeks in Minnesota. In 1953, Mrs. Langford’s husband returned from overseas, and the two went to Fort Sill at Lawton, Oklahoma. Domestic difficulties arose, and appellant contacted Mrs. Gates, the latter inviting her for a visit, and during this visit, appellant met Mr. Gates. She subsequently returned to Lawton, obtained a divorce, and moved to Shreveport, Louisiana. There, she met Mr. Langford, and, according to the testimony of Mrs. Gilbert Marlar, wife of a McNeil minister, married Mr. Langford in the Gates’ home. She and Mrs. Gates visited each other several times. On one occasion Mrs. Gates went to Shreveport to help with the children as one boy had polio. Subsequently, the Langfords moved from Shreveport to Wichita Falls, Texas, remaining there about six months. However, Mr. Langford did not like his employment there, preferring to work on tractors and farm machinery. While visiting in the Gates home, Mr. Lang-ford was taken to prospective employers in that line of work by Mr. Gates, and Langford was subsequently given employment by Magnolia Motors. The couple then moved to Magnolia. This was,in July, 1957, and, according to appellant, she and her family are still living there, purchasing a home.

The foregoing facts are undisputed in the record; likewise, it is undisputed that seances were conducted, and Mrs. Langford claimed on some of these occasions to have had communication with “Babe” and other members of the Gates family, including Mrs. Gates’ parents, and two other daughters, Mary and Louise, who had been born prematurely and had died in infancy. These communications included reports of the activities of the deceased persons in the “spiritual world.” Appellant wrote her impressions and gave them to Hattie Gates; the latter also, at times, felt that she was communicating with the “spiritual world,” and made notes of her impressions, including conversations with her mother and father, two of her daughters, and other relatives. These messages were referred to as “readings.”

Five witnesses testified in behalf of Mr. Gates, viz, Oren Roberts, a brother of Mrs. Gates; Lillian Butler Roberts, his wife; Mrs. Fay Reagan, a friend of the family; Mr. Louis Braswell, a neighbor; and Cecil Fowler, superintendent of schools at McNeil, also a neighbor. All stated that Mrs. Gates strongly believed in the Spiritualist religion, and would frequently talk with the witnesses about this religion; that she was rather “fanatical” on the subject, but all likewise pretty well agreed that, outside of her religious discussions, and an extreme nervousness, her mental condition seemed to be entirely normal. Mr. Fowler specifically stated that in matters other than religion, Mrs. Gates appeared “as normal as the average person.” Several of the witnesses testified that Mrs. Langford was frequently at the Gates home, and Mrs. Keagan stated that she felt that appellant exerted extreme influence over Mrs. Gates.

Mr. Gates testified that his wife had three children by a prior marriage, but only “Babe” survived to adulthood. He stated that he first heard of Harriet Langford soon after the daughter’s death, and that it was because of the acquaintance of “Babe” with Mrs. Langford that the contact was made with his wife. He said that they corresponded nearly every week, and he further testified that, as far as he knew, his wife never believed in Spiritualism until after her acquaintance with appellant. Appellee stated that his wife went to Minnesota to learn more about the religion, and that she stayed in Minnesota about thirty days; upon her return, she had been converted, and believed in Spiritualism. Continuing, the witness stated that Mrs. Langford visited in the Gates’ home on many occasions, and seances were held in the home. Mr. Gates testified that his wife became a nervous ■wreck, and that after a seance, or reading, she was u])set for several days. He stated that he sat in on some of these as a matter of pleasing his wife, and pretended to believe in the religion in order to have “some peace in my home with my wife.” Appellee testified that Mrs. Langford, in 1954, told them that they were going to die in a common disaster, apparently an automobile accident.

“She [referring to appellant] got my wife in such a nervous condition and so upset over it that she wouldn’t go anywhere in the car with me, wouldn’t even come to town with me. She had her disturbed so there that she was afraid I was going to get in a wreck or something or another and kill both of us, she always preached about my driving. I drove a car back there in the old dirt road days and I drove over many states.”

He stated that his wife’s mental condition prior to the daughter’s death in 1947 was very good, but subsequently, her mental condition was “terrible,” and this condition generally grew worse after receiving a letter from, or engaging in conversation with, Mrs. Langford. Mr. Gates said that there was friction between his wife and her brother, W. O. Roberts, and his wife told him that she was going to make a will “so that if we were both killed during an accident and she fixed it so Harriet could get what was left.” "When asked if he thought it was his wife’s intent to put a common disaster clause in the will, he replied, “that is what she should have done.

* * * I think she did, that is what she told me. ’ ’ He stated that the will and codicil were kept by Mrs. Gates in a lock box in the home, and that he did not have access to the lock box, and did not see the will or codicil until after his wife’s death.

Mrs. Langford denied mentioning anything about property to Mrs. Gates, denied making the statement about the common disaster, but stated that, while living-in Shreveport, Mrs. Gates, during a visit, told her one day,

“ ‘Now, I have something to tell you, and I want you to marks this well, ’ and I didn’t know what was coming. I said, ‘Well, what is it?’ and she said, ‘Last week we decided we would redo the will,’ or something, I don’t know just how she put it now, and she insisted I find something to write on and I had to scramble around to find a piece of paper and she said, ‘No, something that is permanent,’ and the only thing at hand was a beat up address book I keep and she said, ‘Write this down:

“Gates business,’ ” and I still didn’t know what to think of it, I was sort of surprised, and she told me to write down the name of Wade Kitchens and I hadn’t heard of it before and she said, ‘His son is Hampton Kitchens. If I should pass away, you be sure to go to that office, there will be something there for you,’ and I had no idea what or how much or anything, and I couldn’t ask her, I was so surprised, I was sort of touched and too surprised to even ever ask her what it was.’ ”

She denied any knowledge of the codicil, or knowing of the devise, until after the death of Mrs. Gates, when Mr. Gates mentioned the codicil to her. Appellant stated that he told her the only reason the amendment had been made was to keep Mrs. Gates’ brother, Oren, from getting any of the property, and he suggested that she go to Kitchens’ office to see the "will, and the amendment. Mr. Gates verified that he mentioned the codicil to her but said that he did not remember telling her that the codicil was added to prevent her brother and his family from inheriting as her next of kin. Mrs. Gilbert Marlar, wife of the Methodist minister of the church at McNeil through 1956, testified that Mrs. Gates was a strong willed person and that she did not see any difference in Mrs. Gates’ mental capacity during the time that she knew her (through 1956).

This, then, is a summation of the evidence upon which the court found that undue influence had been exercised by Mrs. Langford over Mrs. Gates, and that the codicil was the result of such undue influence.

What is “undue influence?” In McCulloch v. Campbell, 49 Ark. 367, 5 S. W. 590, that term is given a definition that has been quoted and cited, as stated by the Arkansas Law Review “with such frequency as to acquire the character of a juridictional classic.” The opinion, written by Associate Justice William W. Smith, states:

“As we understand the rule, the fraud or undue influence, which is required to avoid a will, must be directly-connected with its execution. The influence which the law condemns is not the legitimate influence which springs from natural affection, but the malign influence which results from fear, coercion or any other cause that deprives the testator of his free agency in the disposition of his property. And the influence must he specially directed toward the object of procuring a will in favor of particular parties. [Our emphasis.] It is not sufficient that the testator was influenced by the beneficiaries in the ordinary affairs of life, or that he was surrounded by them and in confidential relations with them at the time of its execution.”

The italicized phrase was emphasized in the case of Allison v. Stroh, 231 Ark. 862, 333 S. W. 2d 737, which opinion also quoted from Davault v. Parks, 190 Ark. 370, 79 S. W. 2d 68, as follows:

“ ‘Before a will can be invalidated upon the ground of undue infuence, there must be testimony proving or tending to prove that the influence was of such character as to destroy the testator’s, free agency, in effect substituting another’s will in the place of his own, and the influence must be directed toward the object of procuring a will in favor of particular parties.’ ”

We are firmly convinced that, under the rule herein cited, together with cases hereafter mentioned, that the court erred in its finding, and should have admitted the codicil to probate.

What are the facts upon which appellee relies?

1. The evidence of Mr. Gates that Mrs. Langford had told appellee and his wife that they would die in a common disaster.

2. The fact that Mrs. Gates grieved terribly over the death of her daughter, and did not adopt the Spiritualist religion until becoming acquainted with Mrs. Langford.

3. The fact that Mrs. Langford and Mrs. Gates conducted seances, corresponded regularly, and visited regularly together.

4. The fact that Mrs. Gates apparently had complete confidence in Mrs. Langford, and, according to some witnesses, was strongly influenced by her.

It will be noted that there is not a single line of evidence in this record to the effect that appellant directed any influence toward the object of obtaining a will in her favor (or in favor of her children). Frequently, where questions of undue influence arise, the party accused of exerting same is present when the will is made, or takes the testator to a lawyer’s office. But here, it is undisputed that Mrs. Langford was in Shreveport at the time of the execution of the codicil, and there is no evidence at all that she knew the contents of the instrument until after the death of Mrs. Gates. The only evidence even coming close is the statement of Mrs. Langford that Mrs. Gates had told her that she was redoing the will, to go to Kitchens’ office (after her death), and “there will be something there for you.”

It was stipulated between counsel that the witnesses to the codicil, vis, Wade Kitchens and Gladys K. Pickens, would testify to the same facts sworn to in executing the “Proof of Will.” This means that it is conceded that Mr. Kitchens and Mrs. Pickens would have testified that at the time of the execution of the instrument, Mrs. Gates appeared to be of sound mind, and acting without undue influence, fraud, or restraint. Actually, it would not appear that there was enough property involved to cause Mrs. Langford to design a course by which to obtain it, though the real estate is apparently somewhat more valuable than the figure given by Mr. Gates at the time of probating the will.

Of course, we are all influenced by our friends, and frequently seek their advice, very often in preference to seeking the advice of relatives, and it is not difficult to understand why these two women held a close relationship. Both had a common affection for the daughter who had died, and the fact that the daughter and Mrs. Langford both had the name, “Harriet,” probably initially aroused some interest in Mrs. Gates; each was interested in the same religion, a religion which was not shared by anyone else in the community. Mrs. Gates’ interest in this religion probably was stimulated by the fact that it was the religion of her daughter. In addition, Mrs. Gates was quite devoted to appellant’s children, and, as previously mentioned, went to Shreveport to be of assistance when one of the children was stricken with polio. The proof thus establishes that they were unusually close friends, and it is not out of the ordinary for testators to remember friends in their wills. The affection that Mrs. Gates held for appellant is well demonstrated by the fact that the former presented to Mrs. Langford in January, 1954, a book, “Your Mental Mirror,” which had been written by her daughter. In the book, Mrs. Gates wrote:

“Presented to Harriet G. Mitchell January 2, 1954 by Hattie Roberts Gates, mother of Harriet Clark Wilkes, in loving memory of my beloved daughter to a friend she loved so .well. May the passing years cement our love for each other more closely and may we make great progress in the subject most dear to our hearts.”

Let it be remembered that her husband was first provided for, and appellants would not receive anything until after the death of Mr. Gates. Here, a rather noticeable circumstance should be mentioned. The Chancellor apparently relied to a great extent upon the testimony of appellee to the effect that Mrs. Langford had stated that appellee and his wife would die in a common disaster, and he held that this influenced Mrs. Gates in making the codicil. Yet, if Mrs. Gates believed this statement, ivhy did she include Mr. Gates in the will at all? He certainly could not enjoy a life estate if he were dead. It is established by the evidence, and stands undisputed, that Mrs. Gates did not like her brother, Oren Roberts, and it is easily understandable that she would prefer to leave the remainder to friends, rather than to have her husband’s relatives eventually take same.

It is also observed that this codicil was not made during a last illness, or during a period of stress, but rather was executed a long time before the death of Mrs. Gates. In Allison v. Stroh, supra, we commented that the testator lived for almost four years after making the will;. here, Mrs. Gates lived over six years after executing the codicil, and, accordingly, had every opportunity to make a change.

Actually, it appears that appellee’s witnesses could not understand Mrs. Gates’ adopting and becoming obsessed with a religion, some features of which, to a nonbeliever (in Spiritualism) might well appear farcical and preposterous, and this strongly contributed to their opinion of undue influence.

Be that as it may, under the facts in this litigation, we find nothing abnormal or particularly unusual in Mrs. Gates ’ disposition of the property, but were it otherwise, the result would be the same. As stated in 94 C.J.S.,. Section 226, Page 1075:

“Every influence exerted on a testator is not undue influence, and it is well settled that influence, consisting of appeals, requests, entreaties, arguments, flattery, cajolery, persuasion, solicitations, or even importunity, is legitimate and becomes ‘undue,’ so as to invalidate the will, only when it is extended to such a degree as to override the discretion and destroy the free agency of the testator. ’ ’

As we said in Allison v. Stroh, supra, the undue influence must be of such character as to actually amount to substituting another’s will in the place of that of the testator, and in Black v. Dunklin, 224 Ark. 528, 275 S. W. 2d 447, we find:

“Certainly, Mrs. Black had the legal right to dispose of her property in any manner that she saw fit, and the fact that such disposition might appear on its face to be unnatural, or inequitable, would have no bearing on the matter whatever — if such disposition expressed the will of Mrs. Black.”

We are convinced that the codicil in question was voluntarily made, and expressed the desire of the deceased, i.e., it was “her will.”

In accordance with the reasoning set out herein, the judgment is reversed, and the cause is remanded to the Columbia County Probate Court, with directions to admit the codicil to probate.

       In the Encyclopedia Americana, Volume 25, Page 421 through 423, appears an interesting article on Spiritualism. The World Almanac of 1964 reflects that there are over 170,000 members of this religion in the United States, broken down as follows:. Int. Gen. Assembly of Spiritualists, 164,072; Natl. Spiritual Alliance of the U.S.A., 3,208; Natl. Spiritualist Assn, of Chs., 5,721.

       It is undisputed that Mrs. Langford was living in Shreveport on April 16, 1956, date of the codicil.

       7 Ark. Law Review, Page 116, a comment by George Banks Collins.

       Mr. Gates has three nieces and one nephew, whose names do not appear in the record.


author: Ed. F. MoFaddin, Associate Justice.

text:
    Gray v. State.
    5110
    379 S. W. 2d 22
    Opinion delivered May 25, 1964.

      Little S Enfield, for appellant.

      Bruce Bennett, Attorney General, by Bussell J. Wools, Asst. Atty. General, for appellee.
   Ed. F. MoFaddin, Associate Justice.

Appellant Cecil Gray was charged, tried, and convicted of stealing twelve head of cattle of the value of $1,000.00 (Ark. Stat. Ann. § 41-3917 [1947]), and he brings this appeal. His motion for new trial contains six assignments; but we find no merit in any of them except those relating to the improper argument of the Prosecuting Attorney.

The defendant, Mr. Gray, testified that he moved from Texas to Arkansas in 1963 and purchased a farm of 200 acres near Huntsville in Madison County; that later he purchased a farm of 600 acres near Gatesway in Benton County and moved to that location in Benton County; that he did not buy any cattle, but raised hogs and goats; that he noticed stray cattle running on his Gatesway farm; that these cattle drank so much water from his troughs that it created a water shortage, so he drove the stray cattle into his corral; that on Sunday morning, June 23, 1963, he borrowed a truck from a neighbor and took the twelve head of stray cattle to his other farm in Madison County several miles away; and that he made two trips to takes the stray cattle from his farm in Benton County to his farm in Madison County. Mr. Gray claimed that he had no intention of stealing the stray cattle but was only removing them to get them away from his limited supply of water. '

The State had shown that when Mr. Gray moved the cattle he had told several people he had bought them; that when he had first been asked on June 24th about moving the cattle he had denied ever having seen any cattle; that later, on June 26th, he had likewise denied to the Sheriff any knowledge of the cattle; but later he had admitted moving the cattle to Madison County, and that eventually he had gone with the Sheriff and Mr. Legg, the owner of the cattle, to Madison County, where Mr. Legg’s cattle were located on Mr. Gray’s place. In the face of all this testimony Mr. Gray insisted that he had no intention of stealing the cattle. He took the witness stand in his own defense, and on cross examination the following occurred:

<£Q. Have you ever been convicted of anything?
££A. Never have been convicted in my life.
“Q. You haven’t, now, down in — where did you come from?
“A. Texas.
“Q. Where in Texas?
“A. Angleton, Texas.
“Q. Do you know the sheriff down there?
“A. Jack Marshall.
“Q. Do you tell the jury you’ve never been convicted of anything or plead guilty to anything, under your oath? . . . Well, you know. Have you, or not?
“A. Now, I don’t understand what you’re talking about now.
‘ ‘ Q. Have you ever been convicted or pleaded guilty to any criminal offense at all?
“A. No, sir.
“Q. You understand what criminal offenses are? You are saying.that, under your oath? We don’t misunderstand each other?
“A. Not that I know of, I’ve never been convicted nr plead guilty, or anything.”

The excerpt, as above copied, seems to be all there is in the record concerning any testimony or evidence or question about previous conviction. With this as the background we come to the statements made by the Prosecuting Attorney in his closing argument. The entire closing argument of the Prosecuting Attorney was transcribed and is before us, and we copy the pertinent excerpt:

“MR. COXSEY: When the witness takes that stand and you ask him if he’s been convicted of a crime — now follow me — and he says, no, we can’t dispute it under the law. It’s a collateral issue. You can’t dispute it. Some of you may wonder if he is guilty, why we can’t show it. We can’t under the law. That’s something between him and his own conscience and his own God and you tell me that he didn’t perjure himself before the Almighty God and before man here? Not only is he .guilty of taking cattle that don’t belong to him and falsifying to Ms fellow man, bnt he is guilty of perjuring his soul right here, and you know it, and he knows it.
“MR. LITTLE: Object and ask it be stricken.
“THE COURT: If you are going to object, I want to hear it.
“MR. COXSEY: He’s going to object to everything I’m going to say.
“THE COURT: Overruled.
“MR. LITTLE: Save our exceptions.”

We admire and commend a vigorous prosecuting attorney, as is the one in this case; yet there are certain limitations prescribed by our decisions as to the extent to which a prosecuting attorney — the representative of the State — may go in arguing the case to the jury. Here, we have a defendant on the witness stand who is asked and interrogated as to previous convictions. The State did not offer any previous conviction record, if there was such. Yet in the closing argument the Prosecuting Attorney said that even though the State could not impeach the testimony of the defendant as to previous convictions, still the Prosecuting Attorney knew that the witness had perjured himself on that point. This goes beyond the permitted line of argument.

We have a great number of cases on this matter of the extent to which a prosecuting attorney may go in his argument, and our Court has been more liberal in allowing arguments than have many other courts. In Carroll v. State, 71 Ark. 403, 75 S. W. 471, we said:

“It is difficult to determine how far an attorney may go in expressing his opinion and conclusions on the facts as was the case in both these instances. The best the courts can do is to rule on questions of the kind very much as the circumstances of each case may determine.”

In the light of our statement in Carroll v. State, supra, we reach the conclusion that the argument in the present case was improper and highly prejudicial. The State had introduced no evidence of any prior convictions of appellant Gray, and yet the Prosecuting Attorney told the jury he knew the defendant had committed perjury when he stated he had never been convicted of any offense. This was going too far. In Hays v. State, 169 Ark. 1173, 278 S.W. 15, the special prosecuting attorney in his closing argument stated facts that were not in evidence; and, in reviewing the case, because of the improper argument, we said :

“This court has been very careful to guard the right? of accused persons, and counsel for the State is never allowed to state facts which are not evidence for the purpose of securing a conviction. Counsel for the State not only stated that he believed that the defendant had carried the girl to El Paso, but that the presumption was that he had carried her there. As above stated, the court refused either to reprimand the attorney or to interfere with him in any way in making this kind of an argument. This amounted to an approval of the argument, and constitutes such prejudicial error as calls for a reversal of the judgment. Doran v. State, 141 Ark. 442; Brown v. State, 143 Ark. 523; Crosby v. State, 154 Ark. 20; and Hughes v. State, 154 Ark. 621.”

The situation in the case at bar is similar to that in Hughes v. State, 154 Ark. 621, 243 S. W. 70, from which we copy:

“Lastly, appellant contends, that his rights were prejudiced by the following statements of the prosecuting attorney made in closing the argument, to-wit: ‘I know he is guilty, I am willing to meet' my God in the next hour knowing that Hughes is guilty, because I am thoroughly convinced. I have examined the testimony and know so much about it, and know things that never get to anybody else.’ When this statement was made, the counsel for appellant objected, and the court stated that the argument of the prosecuting attorney was improper and the jury should not consider it. The statement was an attempt on the part of the prosecuting attorney to testify. He, in effect, said that he was in possession of facts which could not he revealed to the jury, but which riveted conviction upon appellant. Coming from a sworn official, the remark was calculated to make a deep impression upon the minds of the jurymen. It cannot, perhaps, be classed with remarks the effect of which cannot be removed even by a solemn admonition of the court, but it was certainly a flagrant violation of the right of appellant to a fair and impartial trial vouchsafed to him by the Constitution and laws of the State of Arkansas. Considering the highly prejudicial character of the remark, its effect could not be removed by a mild admonition of the court. We think the trial court, in the exercise of a sound discretion, should have challenged the statement, with such comment as the exigencies of the occasion demanded. He might have said that it was the sworn duty of the prosecuting attorney to reveal all the facts within his knowledge, and his failure to do so would have been proof conclusive that he had no such information; or he could have stopped the trial and required the attorney to establish the facts in his possession by competent testimony. Either course would have erased the ill effects of the remark from the minds of the jury, but, in the opinion of the majority, the mild admonition of the court, as indicated by the language used, did not meet the exigencies of the particular situation. ’

In the case at bar the defendant Gray duly saved his exceptions, no admonition of any kind was given, no withdrawal of the remarks was made; so we have no alternative except to reverse the judgment and remand the cause for a new trial.

       In 50 A.L.R. 2d 766 there is an exhaustive annotation entitled “Propriety and effect of prosecuting attorney’s argument to jury indicating his belief or knowledge as to guilt of accused.” In that annotation the holdings of the various jurisdictions are given. See also 53 Am. Jur. 392, “Trial” § 486.


author: George Rose Smith, J. Jim Johnson, Associate Justice

text:
    North Hills Memorial Gardens v. Simpson.
    5-3227
    381 S. W. 2d 462
    Opinion delivered May 25, 1964.
    [Rehearing denied September 14, 1964.]

      Russell S Hurley, Edtvin E. Dunaway, for appellant.

      Glenn F. Walther, for appellee.
   George Rose Smith, J.

This is the second application by the principal appellee, Rest Hills Memorial Park, Inc., for authority under the Cemetery Act to establish a new cemetery between North Little Rock and Jacksonville. Ark. Stat. Ann. §§ 82-411 et seq. (Repl. 1960). Both applications have been resisted by the appellant, which owns another cemetery, North Hills Memorial Gardens, situated about two miles from the site of the appellee’s proposed cemetery.

Rest Hills ’ first application was denied by the Cemetery Board on March 26, 1962. The board’s order is not in the present record, but apparently the application was rejected on the sole ground that sufficient grave spaces were available in other cemeteries to meet the public need. Rest Hills took an appeal to the Pulaski Chancery Court, hut the corporation elected to dismiss its appeal before the matter was heard by the court.

The present application was filed by Rest Hills in October of 1962. After an extended hearing the board changed its position and filed an opinion on March 29, 1963, granting the permit. North Hills appealed to the chancery court, where the board’s decision was affirmed. This appeal followed.

At the outset the appellees, Rest Hills and three members of the Cemetery Board, attack the constitutionality of that section of the Cemetery Act that provides for an appeal to the chancery court. § 82-414. Counsel rely upon the settled rule that the legislature cannot enlarge or diminish the jurisdiction of equity as it existed when the Constitution of 1874 was adopted. German Nat. Bk. v. Moore, 116 Ark. 490, 173 S. W. 401.

We do not reach the merits of this contention. A constitutional question cannot be raised for the first time on appeal. Latham v. Hudson, 226 Ark. 673, 292 S. W. 2d 252. Even if the provision for a review in chancery is invalid it does not follow that there would be a complete absence of jurisdiction, as would be the ease if the chancellor attempted to hear a criminal case. In this situation the appellees’ jurisdictional objection cannot be interposed for the first time in this court. They waived the point by failing to seek a transfer of the cause to the circuit court. Green v. Garrett, 225 Ark. 311, 280 S. W. 2d 905.

It is first contended by the appellant that the board’s original denial of Rest Hills ’ application for a permit is res judicata. It is true that when an administrative board acts judicially or quasi judicially its decision may be res judicata in a second proceeding involving the same question. Bockman v. Ark. State Medical Board, 229 Ark. 143, 313 S. W. 2d 826. We are not convinced, however, that all the technical rules that make up the common-law doctrine of res judicata should apply with equal force to administrative proceedings.

For example, if the plaintiff in a lawsuit loses his case on the merits because of his inadvertent failure to prove some fact essential to his cause of action he is not allowed to file a second suit and try the issues again. There is no good reason for applying this rule in an administrative matter such as this one. Counsel for the appellees point out that Rest Hills may have elected to dismiss its first chancery appeal and start over again for the reason that it did not then have title to the site of its proposed cemetery — a defect that might have been fatal. It would hardly be reasonable to deny a second application for an administrative permit merely because of some technical flaw in the first application.

Again, a decision at common law is conclusive not only of those matters that were actually litigated but also of those questions that were within the issues and might have been explored. This rule ought not to apply to the decision of a law body such as the Cemetery Board. Rest Hills’ original application was denied on one ground only. At the second hearing the board considered additional matters, including the accessibility of the Rest Hills site, its beauty as compared to that of North Hills, and the various facilities that Rest Hills mean to provide. A chapel, a mausoleum, and a crematory were included in the applicant’s long-range plans. An important consideration is ££the need or desirability from the public standpoint of the proposed cemetery. ” §82-419. If there is really a need for the proposed cemetery, as the board found, then the public interest should not be thwarted merely because Rest Hills did not present all its available evidence at the first hearing. The plea of res judicata was correctly rejected.

A second contention is that the board erred in finding that there was a public need for the Rest Hills cemetery. On this issue the testimony is in sharp conflict. Harry Leggett and Harold Brown, both of whom had extensive experience in this general field, gave their reasons for believing that the cemetery was needed. The appellant produced much evidence to the contrary. If the case were being tried ele novo we might be inclined to think the board’s decision to be against the weight of the evidence. But that is not the standard of review. The question is whether the board’s decision was arbitrary. North Hills Memorial Gardens v. Hicks, 230 Ark. 787, 326 S. W. 2d 797. In view of the persuasive proof proffered by both sides we are unable to say that the board’s findings are not sufficiently supported.

In the chancery court the appellant made for the first time the interesting point that the Cemetery Board was not legally constituted. The original statute, Act 250 of 1953, created a three-member board. Ark. Stat. Ann. § 82-414 (Repl. 1960). In 1961, by Act 74, the legislature increased the membership to five (§ 82-414 [Supp. 1963]), but for some reason the two additional members had not been appointed when this application was heard by the board in the early part of 1963. The appellant insists that the proceedings before a board of only three members were void.

We are of the opinion that the board’s action had at least practical validity. When there is a de jure office, as there was here, sound policy requires that the acts of a de facto incumbent be given effect. See Pope v. Pope, 213 Ark. 321, 210 S. W. 2d 319. Act 74 of 1961, supra, specifically provided that three members of the Cemetery Board should constitute a quorum and that orders should be made by majority action of the five members. All three members acted in this case. They were unanimous. Thus they exercised the same authority that they would have had if the other two members had already been appointed but had not been present at the hearings. In the absence of any timely objection to the composition of the board the appellant cannot be permitted to challenge the validity of the proceedings only after the decision has proved to be unfavorable to it.

The appellant argues several other grounds for reversal, some being that a member of the board was absent for four or five minutes during one of the hearings,. that all the officers of Rest Hills were not excluded from the courtroom during the trial in chancery, that the board should have required Rest Hills to contribute to its perpetual care fund more than the statutory minimum of 10% (§ 82-422), and that there are other prejudicial errors in the record. We have reviewed these arguments and find them to be without merit.

Affirmed.

Johnson, J. dissents.

Jim Johnson, Associate Justice

(dissenting). I do not agree with the majority view. The entire record before us strongly indicates pungent tinges of an expedient opinion by the Arkansas State Cemetery Board, a ruling which on appeal can only be disturbed by a finding that the board acted arbitrarily. Newton v. American Sec. Co., 201 Ark. 943, 148 S. W. 2d 311. In fact that majority concedes that “if the case were being tried de novo we might be inclined to think the board’s decision to be against the weight of the evidence.” The board’s decision is not only against the weight of the evidence it is against virtually all of the evidence. On March 26, 1962, after a full and complete hearing on all issues this board judiciously denied appellee’s application for a cemetery permit. A few short months later this same board based upon practically the identical testimony did a complete flip flop and granted appellee’s permit. The record is silent as a tomb as to why. It is true as pointed out by this court in North Hill Memorial Gardens v. Hicks, 230 Ark. 787, 326 S. W. 2d 797, “there is nothing in Act 250 of 1953 calculated to create a monopoly in favor of existing cemeteries,” still, in that case, we were careful to determine that Act 250 is a hanking measure regulating the creation, maintenance and operation of perpetual care cemeteries, investing certain descretionary powers in the board not for the creation of monopolies but to insure the exercise of sound financial practices.

The legislature in its wisdom obviously recognized a need to protect the investiments of hundreds of thousands of the unsuspecting public when it enacted Act 250 of 1953. The law requires such cemeteries to set aside a percentage of the sales price of these lots in a perpetual care fund, from which must he met the cost of maintaining these cemeteries eternally. The spirit of the act is to guarantee that persons who invest in lots for their loved ones in perpetual care cemeteries will receive what they pay so dearly for. Yet the record here shows beyond question that not a perpetual care cemetery in the Pulaski County area could fulfill this contractual obligation for perpetual care if their present sales were diminished. Even now some of these cemeteries appear to be teetering on the brink of bankruptcy. At this point there is not a perpetual care cemetery in the Pulaski County area which could be maintained by their perpetual care fund. Far from it. The record is as follows:

Pine Crest Memorial Park, Inc., is a garden type cemetery located ten miles west of Little Eock, approximately two miles from the Saline County line on the old Hot Springs highway. It consists of 229 acres, out of which 150 acres have been dedicated. 150,000 burial spaces have been sold from such 150 acres, and 206,000 more are available for sale from such acreage. Only 6,000 persons are buried in this cemetery, and its present rate of funerals is 300 per year. It maintains a perpetual care fund derived from 10% of the sale price of burial plots. At present the fund has a balance of $119,000.00, which earns from approxed investments about $4,000.00 annually. The cost of maintenance of the cemetery is $60,000.00 each year; therefore 1,000 spaces must be sold at an average of $100.00 each during the period of a year for the enterprise to operate successfully.

North Hills Memorial Gardens, a new cemetery, is situated midway between Little Eock and Jacksonville. It contains 200 acres, which will be utilized in both garden type and monument sections. At the present it has sold 1,000 burial spaces and is offering 179,000 additional spaces for sale. It must sell 500 to 600 spaces per year in order to meet its maintenance cost, which is presently $15,000.00. Forty-five persons are buried there.

Forest Hills Memorial Park is established on State Highway 5 at the Pulaski-Saline County line. In comprises 140 acres which if developed in entirety would require an expenditure of $35,000.00 per year for maintenance. Additional burial spaces in the amount of 40,000 should be sold in order to provide an annual income of $35,000.00.

Chapel Hill cemetery, containing 40 acres, is situated near Jacksonville. It has available for sale 19,000 spaces provided through the development of 20 acres and a like number of space can be secured by the development of the remaining 20 acres. Sales totaling $40,000.00 annua]ly are necessary to meet the maintenance cost of $8,000.00.

Now against this overwhelming evidence appellant offered the testimony of its star witness, Mr. Harold Brown. Mr. Brown testified as an expert. He was qualified as follows:

“I live in Topeka, Kansas. I am a cemetery consultant, for approximately 11 years. You do not learn this in schools, but through experience. I was in the business 3 years prior to becoming a consultant. I act as a consultant on basic management problems relative to the business sales development. I consult with people before they go into the cemetery business. I do consultant work in several states, principally sales operation. I am consulted on almost every phase of the business. People consult me on all phases of the operation of the cemeteries. I am a member of the National Association of Cemeteries. These associations operate some schools for sales and administration. I have been an instructor in both associations. I have written a number of articles that have been published in the American Cemetery Magazine as well as a book called “How to Sell Cemetery Property Before Need.’ ”

On cross-examination Mr. Brown candidly admitted that he had worked for perpetual care cemeteries in the Pulaski County area and found the selling of cemetery lots as hard as he had ever encountered, that he gave it up because he didn’t find it profitable.

Not one disinterested witness testified as to need for this additional cemetery.

The state of the record being thus, I am impelled to the conclusion that the State Cemetery Board when it granted appellee a permit acted arbitrarily and with reckless' abandon flooded the already glutted marked with approximately 45,000 new cemetery lots, to be pushed by the accompanying avalanche of salesmen. By so doing the Board severely jeopardized the investments of all the people in the Pulaski County area who have heretofore invested in perpetual care cemetery lots. By the enactment of Act 250 the legislature in no uncertain terms admonished the Cemetery Board that “the need to be considered is a need from a public standpoint.” Clearly the board failed in its responsibility.

For the reasons stated, I respectfully dissent.


author: Paul Ward, Associate Justice.

text:
    Blair v. Bradley, Adm’x.
    5-3282
    379 S. W. 2d 5
    Opinion delivered May 25, 1964.

      John B. Driver, for appellant.

      N. J. Henley, for appellee.
   Paul Ward, Associate Justice.

The decisive question is: under the facts of this case when does property disposed of by will vest in the devisee?

Prior to 1925 Sam M. McDaniel, (a widower) died intestate seized of 329 acres of land. He was survived by one daughter and three sons: Ida Bell (McDaniel) Blair, G. B. McDaniel, H. A. McDaniel, and W. M. McDaniel. Shortly after her father’s death Ida Bell deeded all her interest in said lands to her three brothers. Later G. B. and H. A. acquired other real property.

In 1953 G. B. and H. A. each made a will leaving-all their property to W. M. In 1960 G. B. (a widower) died without issue and H. A. (who was never married) died in 1961. W. M. died intestate December 22, 1962, leaving- a daughter, Grace McDaniel Bradley, and a grandson, Donald McDaniel. On January 5, 1963, Grace was appointed administratrix of her father’s estate.

Ida Bell died June 13,1963, and the following month her heirs (appellants herein) intervened in the administration proceedings, claiming- they owned (as heirs of their mother) one half of the estates of G. B. and H. A. Thereupon, on October 1, 1963, Grace Bradley filed for probate the wills of G. B. and H. A. These wills, admitted to probate without objections, devised everything they owned to W. M. Both sides requested the court to construe the wills and to determine the interest of each party.

The trial court dismissed the intervention of appellants and gave all the property of G. B., H. A. and W. M. to appellees, Grace and Donald, share and share alike.

Appellants very ably contend that, since G. B. and H. A. died more than a year before W. M. died and since W. M., during his lifetime, failed to offer their wills for probate the devises lapsed and that therefore they (as the only heirs of Ida Bell) were entitled to one half of the estates of G. B. and H. A. We find no authority to support appellants’ argument. On the other hand, as we view the authorities, the devises (in the wills of G. B. and H. A.) took effect at the time of the death of each of the testators. That rule would invest W. M. with the two estates during his lifetime, which would accordingly pass to his heirs under the laws of descent and distribution.

What appears to he the generally accepted rule is well and concisely stated in 96 C. J. S. Wills % 1099 "(Time of vesting):

“Generally, title to real property passes to, and vests in, the devisees immediately on the testator’s death and not at the probate of the will, at least where the will does not postpone the vesting of title.”

It is not contended of course that the wills of G. B. and H. A. postponed the vesting of title. The text cites numerous cases from more than 25 states in support of the rule set out above. See particularly: Noble et al v. Beach et al, 21 C. 2d 91, 130 P. 2d 426, 428; Stewart v. Morris et al, 313 Ky. 424, 231 S. W. 2d 70, 71; and Martin et al v. Hale et al, 167 Tenn. 438, 71 S. W. 2d 211, 212.

In the case of Booe v. Vinson, 104 Ark. 439, 448, 149 S. W. 524, there appears this statement:

“It is also a well established principle that the law favors the vesting of estates, and, in the absence of a contrary intention of the testator appearing from the will, the estate will vest at the time of his death ...” The above rule has been consistently followed by this Court. See McCarroll v. Falls, 129 Ark. 245, 195 S. W. 387; McKinney v. Dillard & Coffin Company, 170 Ark. 1181, 283 S. W. 16; Doake v. Taylor, 195 Ark. 490, 112 S. W. 2d 958, and Hargett v. Hargett, 226 Ark. 929, 295 S. W. 2d 307.

Here the wills of G. B. and H. A. were probated well within the time (5 years) allowed by Ark. Stat. Ann. § 62-2125 (Supp. 1963).

There can be no doubt that the lands passed directly to the heirs (Grace ánd Donald) of W. M. upon his death since it appears there was no widow and no debts. See Dean v. Brown, 216 Ark. 761, 227 S. W. 2d 623.

Affirmed.


text:
    Balloun v. Archer.
    5-3269
    379 S. W. 2d 6
    Opinion delivered May 25, 1964.

      Parker Parker, for appellant.

      William B. Bullock, for appellee.
   Sam Robinson, Associate Justice.

On August 16, 1962, Frank Balloun and 65 other landowners filed a petition in the Chancery Court, Dardanelle District, Yell County, praying for the formation of the proposed Smiley-Pin-Harris Creek Watershed Improvement District. The 66 petitioners alleged, among other things, that they were landowners within the proposed Watershed District, which was comprised of a total of 112 landowners, that their holdings represented a majority in acreage, and that pursuant to the requirements set out in Ark. Stat. Ann. § 21-906 (Repl. 1956), they represented a majority of the landowners in number and in valuation.

Prior to a hearing on the petition, a motion was filed by numerous landowners in the district asking the court to deny the creation of the district on several grounds. Ten of the movants alleged that their signatures had been obtained by fraudulent misrepresentation and concealment of material facts. All asserted that the district contained some 131 landowners and not 112 as alleged in the petition. The court denied the petition to create the district and the petitioners have appealed.

For reversal appellants argue that the trial court erred in allowing nine petitioners to remove their names after the petition had been filed with the court since they made no showing of irregularities, fraud or deceit. Pendleton v. Stuttgart, 235 Ark. 513, 360 S. W. 2d 750.

Although there is evidence in the record that several petitioners were unaware, at the time of signing, of a 15-20% tax assessment, and the fact that they were selecting five commissioners whose names were subsequently inserted in the petition, we do not reach the question of the correctness of the trial court’s determination that these petitioners showed cause for the removal of their signatures. We find, however, that the signatures of some 12 additional petitioners should have been removed and that appellants, therefore, failed to provide the chancery court with a petition representing a majority of the landowners within the proposed district.

Seven of the petitioners owned no land within the proposed district as shown by the latest assessment of real property offered as exhibit by appeellants. Their names should be stricken and they cannot now contend that they were not before the court, inasmuch as they are paries to the litigation.

We further find that some five additional petitioners’ signatures should be removed for other causes. Two petitioners had died before the filing of the petition; there Avas no revivor. Two signatures should have been removed as they were obtained without the' authority of the landowners, and one landowner whose name appeared on the petition testified without contradiction that he never signed the petition and had no knowledge of how his name had been acquired. With these names deleted, the petition does not contain a majority in number.

If the petition for the formation of the district does not contain the names of both a majority in number and in valuation, the court may, at its discretion, deny the petition. Ark. Stat. Ann. § 21-906 (Repl. 1956). Here, we do not find that the court abused its discretion.

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    Beckwith v. State.
    5107
    379 S. W. 2d 19
    Opinion delivered May 25, 1964.

      Wiley A. Branton and L. Hobson Mahon, for appellant.

      Bruce Bennett, Attorney General, by Beryl Anthony, Jr., Asst. Atty. General, for appellee.
   Jim Johnson, Associate Justice.

This is an appeal from an order overruling motions to quash information and discharge defendant.

On December 12, 1954, Mrs. Sue Helen Fuller was killed in Monroe County during a burglary. Appellant Paul Louis Beckwith was one of forty to sixty persons taken into custody the day of the murder. After being held in jail for over a week, appellant and the others were released when one Willingham confessed to the crime. (Willingham was later released and charges against him dropped when, according to the prosecuting attorney’s testimony, it was discovered that Willing-ham was a “nut.”) In January, 1955, appellant was convicted of burglary in Desha County and sentenced to three years in the state penitentiary. On August 7, 1957, when Beckwith was released from the Arkansas penitentiary, he was turned over to Missouri authorities and thereafter convicted of an earlier crime. On July 5,1962, the Monroe prosecuting attorney filed an information charging appellant with the murder of Mrs. Fuller on December 12, 1954. On August 12, 1962, when appellant was released from the Missouri penitentiary, he was returned to Arkansas and has been held in the Monroe County jail ever since. On October 8, 1963, appellant filed a motion to quash the information, and on November 29, 1963, filed a motion to discharge defendant and quash information. The first motion, together with another motion which 'was withdrawn, was brought on for hearing on October 8, 1963. Testimony of the prosecuting attorney, circuit clerk and appellant was taken at this hearing. On November 29, 1963, the motion to discharge defendant and quash information was argued before the court. From the court’s order overruling the motions, appellant has prosecuted this appeal.

For reversal, appellant first urges that the trial court erred in overruling appellant’s motion to quash information because (1) prosecution by information under Arkansas Statutes violates the Federal Constitution, and (2) the procedure followed by the prosecuting attorney in this case was unlawful and deprived appellant of due process of law.

We will assume without deciding that the part of the order questioned under point one is an appealable order.

The first portion of appellant’s point one has been before this court a number of times. The court has consistently upheld' the constitutionality of prosecution by information under Amendment 21 of the Arkansas Constitution. This appellant candidly admits and cites relevant decisions such as Washington v. State, 213 Ark. 218, 210 S. W. 2d 307; Cascio v. State, 213 Ark. 418, 210 S. W. 2d 897; and Payne v. State, 226 Ark. 910, 295 S. W. 2d 312. However, appellant seriously urges this court to reconsider the question and overturn these precedents. After careful and thoughtful review of the record and the briefs as well as prior decisions, we find no compelling or persuasive reason to override our previous adjudications on this point.

The second part of appellant’s first point is that the trial court erred in overruling appellant’s motion to quash the information because the procedure followed by the prosecuting attorney in this case was unlawful and deprived appellant of due process of law. Appellant strongly contends that even if we continue to hold that prosecution by information is constitutional and that no preliminary hearing is necessary as a condition precedent to filing an information, as we do, then the procedure followed by the prosecuting attorney in this case has been so arbitrary, unreasonable and unlawful as to deprive appellant of due process of law. Appellant’s argument is apparently based on various facts including (1) that, a great deal of time has elapsed between the commission of the alleged crime and appellant’s being charged, even though the Monroe County authorities were well aware of appellant’s whereabouts in the Arkansas and Missouri penitentiaries, (2) that the prosecuting attorney did not seek leave of court before filing the information and then simply had the warrant issued by the court clerk, and (3) that the court itself did not issue the bench warrant on the information.

Appellant refers to the length of time between the murder and appellant’s arrest as being unreasonable and a severe handicap to appellant in preparing his defense. We appreciate that “time gradually wears out proofs of innocence” just as surely as time wears out proofs of guilt, but the unwavering public policy of this state which has been a part of our statutory law since at least 1838 is that “any person may be prosecuted, tried and punished, for any offense punishable with death, at any time after the offense has been committed.” Ark. Stat. Ann. § 43-1601 (1947). Appellant argues that the statutes relating to process on indictment requiring the court to order issuance of the process on an indictment [Ark. Stat. Ann. §§ 43-1101 — 43-1112 (1947)] tion. We see no merit in this argument. If it could reashould be equally applicable to prosecution by informasonably be said that there was in fact a question as to the propriety of the procedure followed in the case at bar, the trial court validated the filing of the information without leave of court as well as the warrant issued on the information by its later order overruling the motions to quash the information. From a review of the entire record, we cannot say that the procedure followed by the prosecuting attorney here has been so arbitrary, unreasonable and unlawful as to deprive appellant of due process of law.

Appellant’s second point urged for reversal is that the court erred in overruling appellant’s motion for discharge by reason of his having been held in jail beyond the third term of court without benefit of trial.

Ark. Stat. Ann. § 43-1708 (1947) reads as follows:

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

In construing the above and related statutes (§ 43-1709, Time accused may be kept on bail,- § 43-1710, Trial not had for want of time, and § 43-1711, Evidence on part of state — continuance to procure), this court has consistently held that where a prisoner is out on bail, in order to take advantage of these statutes, such prisoner must place himself in the attitude of demanding trial or at least resisting postponement. Stewart v. State, 13 Ark. 720. However where the defendant is held in jail the burden is on the State to show that the failure to bring him to trial was caused by a lack of time to try the case or delayed on application of the prisoner. Ware v. State, 159 Ark. 540, 252 S. W. 934; Fulton v. State, 178 Ark. 841, 12 S. W. 2d 777. There was no evidence in the record on whether there was want of time to try appellant. On the other hand, the record does contain the following stipulation between the prosecuting attorney and one of appellant’s attorneys:

“Mr. Lee: If the court please, I would like to ask attorney Mahon if he would stipulate that the State has not delayed the trial of this case. I have always been agreeable to try the case at anytime you wanted and your main excuse has been, attorney Branton was busy down in Atlanta, Georgia, with other matters and couldn’t get up here and the State has not delayed at all and has been ready and willing at all times to try the case and it has been you that has been asking for the delay.
“L. H. Mahon: I will stipulate to that.”

The state of the record being thus, we cannot say that the State failed to sustain its burden of showing that the delay happened on the application of the prisoner.

Affirmed.