author: George Rose Smith, Justice. Conley Byrd, Justice,

text:
    GENERAL TELEPHONE COMPANY OF THE SOUTHWEST v. Lynn LOWE
    78-18
    569 S.W. 2d 71
    Opinion delivered June 26, 1978
    (In Banc)
    [As modified on petition for rehearing September 5, 1978.]

      Spitzberg, Mitchell & Hays, by: John P. Gill, Jerry D. Jackson, and Kent Foster; and Wueste, Holt, Harper & Hightower, by: Ward W. Wueste and David Hightower, San Angelo, Texas, for appellant.

      Autrey, Weisenberger, Lingo & Johnson, by: LeRoy Autrey and Donald W. Lingo, for appellees.

      Stephen Cuffman, Asst. Counsel, Ark. Public Service Comm’n, for Ark. Public Service Comm’n, Amicus Curiae.

      Joe E. Griffin, City Atty., for City of Texarkana, Arkansas, Amicus Curiae.
   George Rose Smith, Justice.

For many years the telephone rates on both sides of the Arkansas-Texas line in Texarkana were the same. In May, 1977, the appellant, which serves a number of cities and towns in Arkansas and Texas, raised its rates in Texarkana, Arkansas, without raising its rates in Texarkana, Texas. The appellee brought this class suit to enjoin the enforcement of the rate increase in Texarkana, Arkansas. This appeal is from a decree permitting the company to collect its former rates on the Arkansas side, but enjoining the collection of the increase until a similar increase has been put into effect on the Texas side. For reversal the telephone company contends that it is entitled to collect the increase regardless of the rates across the state line.

The continuous equality of telephone rates throughout the cities of Texarkana was the result of there having been in the franchise granted by each city a provision similar to the following paragraph, which we quote from the most recent franchise granted by Texarkana, Arkansas:

Notwithstanding any other section or provision hereof, it is specifically agreed that the Grantee shall never charge a higher rate for telephone services within the City of Texarkana, Arkansas, than is charged for the same or similar services in the City of Texarkana, Texas, and the Grantee waives all rights it may have or claims which are inconsistent with this section.

The appellant argues that the above provision was nullified by Act 164 of 1977, which took away the authority of cities and towns in Arkansas to regulate utility rates. Ark. Stat. Ann. §§ 73-202a and -202b (Supp. 1977).

The background of the 1977 statute is pertinent. Under Act 324 of 1935 cities and towns on the one hand and the Public Service Commission (then the Department of Public Utilities) on the other exercised concurrent jurisdiction in fixing utility rates in municipalities. Ark. Stat. Ann. § 73-208 (e). The same statute, in subsection (f), provided that neither the act nor the Department (Commission) nor any court should deprive a municipality of benefits accruing to it under any franchise to which it was a party. Under the 1935 statute it was this appellant’s practice, at least as far back as 1950, not to put into effect on the Arkansas side any rate increase granted by the Public Service Commission or by the city until the increase had also been approved on the Texas side.

In February, 1976, the company applied to the Commission for a general rate increase to be effective in all the 49 cities and towns served by the company in Arkansas. The Commission conducted a hearing on the application in December, 1976. Before the Commission reached its decision the legislature adopted Act 164, supra, effective February 14, 1977, vesting exclusive rate-making jurisdiction in the Commission. Section 5 of Act 164 maintained the status quo generally by providing that existing utility rates should not be affected until changed by order of the Gommission.

The appellant did not in any way bring Act 164 to the Commission’s attention. In April, after the passage of the act in February, the Commission handed down its decision granting the company an increase in rates not exceeding $1,325,528 annually. The company was directed to submit schedules designed to put the increase into effect. The company promptly submitted such schedules, still with no mention of Act 164. The Commission approved the schedules, which divided the various cities and towns into seven classifications according to the number of telephones in use. Texarkana, Arkansas, was put in Class V, but the city was not singled out for special treatment.

The telephone company next applied to the Texas Public Utility Commission for a like increase in its rates in Texarkana, Texas. When that application was denied the company announced for the first time that the increased rates were being put into effect in Texarkana, Arkansas. This suit followed.

The chancellor’s written opinion first held the rate increase in Texarkana, Arkansas, to be invalid on the merits, on the ground that Act 164 did not repeal the proviso in § 73-208 (f), supra, which prohibited the Commission and the courts from depriving a municipality of franchise benefits. The chancellor then went on to say that, even if his decision on the merits was in error, the collection of the rate increase should nevertheless be stayed, because Act 164 was not retroactive, and its effect upon the proposed increase had not been raised or decided in the proceedings before the Commission.

The chancellor was mistaken in deciding the case on its merits. A court of equity does not have concurrent jurisdiction with the Public Service Commission in public utility litigation when there is a clear, adequate, and complete remedy by an application to the Commission. Commercial Printing Co. v. Ark. Power & Light Co., 250 Ark. 461, 466 S.W. 2d 261 (1971); McGehee v. Mid South Gas Co., 235 Ark. 50, 357 S.W. 2d 282 (1962). Here the telephone company had such a remedy. The Commission unquestionably has jurisdiction to fix telephone rates in Texarkana, Arkansas. In doing so it may pass upon questions of law that are germane and incidental to its legislative act or ratemaking. Southwestern Gas & Elec. Co. v. City of Hatfield, 219 Ark. 515, 243 S.W. 2d 378 (1951). Therefore the Public Service Commission is the proper tribunal to decide in the first instance the effect of Act 164 upon telephone rates in Texarkana, Arkansas.

Hence the chancellor was in error in assuming jurisdiction of the case on its merits. For the same reason there was no jurisdiction in the chancery court to enjoin the company from collecting its increased rates. Those rates had been approved by the Commission; so there was no requirement that the company post a bond before putting the new rates into effect. We express no opinion about the appellee’s possible remedies before the Commission. Neither do we reach the issue presented by the cross appeal, having to do with the validity of intrastate long-distance rates; for that too is a matter for the Commission’s decision in the first instance.

Reversed and dismissed.

Byrd, J., dissents.

Conley Byrd, Justice,

dissenting. In my view Act 164 of 1977, vested sole and exclusive rate making authority in the public service commission. Since the vesting of such authority in the public service commission and the commission’s order made subsequent to the enactment thereof would conflict with the franchise agreement between General Telephone Company and the City of Texarkana, then the trial court would have jurisdiction to determine that controversy.

For the reasons stated, I would reverse on direct appeal and affirm on the cross-appeal.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    Virginia Lil Turner PALMER v. Ethel LIDE et al
    78-39
    567 S.W. 2d 295
    Opinion delivered June 26, 1978
    (Division I)

      McKay, Chandler & Choate, P.A., for appellant.

      Tompkins, McKenzie, McRae & Vasser, for appellees.
   George Rose Smith, Justice.

This case turns upon the interpretation of a mineral deed executed in 1927 by the parties ’ predecessors in title. The appellees, who have succeeded to the grantors’ interest, contend that the deed conveyed a l/64th interest in whatever royalty might be reserved by the grantors in subsequent oil, gas, and mineral leases upon the property. Since the royalty was later fixed at l/8th of the production, the appellees’ interpretation, which the chancellor approved, means that the grantee became entitled to 1 /8th of 1 /8th of 1 /8th, or 1/512th, of the total production. The appellant insists that the mineral deed conveyed 1 /8th of l/8th not of the royalty but of the total production.

We agree with the appellees. It is almost sufficient merely to quote the pertinent language in the 1927 mineral deed, which seems to us to admit of only one construction:

... do hereby grant, bargain, sell and convey ... an undivided one-eighth of one-eighth (1/8) interest in and to all of the oil, gas and other mineral royalty in, under and upon the following described land . . .
* * * *
... we do hereby grant and convey unto the said John C. Orr the right to collect and receive under any lease, leases or contracts now in effect upon said land or that may hereafter be executed . . ., such one-eighth of one-eighth part and interest of all oil, gas and minerals which may become due under such lease, leases or contracts.
It is hereby intended to convey to the said John C. Orr one-eighth of one-eighth of whatever royalty in the oil, gas, and minerals in, under and upon said land which has been retained, provided and reserved, or which may hereafter be retained, provided or reserved, in any oil, gas or mineral lease, leases or contracts covering said land.
* * * #
. . . the said John C. Orr, however, to receive and be entitled to one-eighth of one-eighth of whatever oil, gas or mineral royalty may be reserved ... in any lease, leases or contracts for the production of oil, gas and other minerals which may hereafter be placed on said land above described.

It will be seen that the deed refers not once but four times either to 1 /8th of 1 /8th. of the royalty or to l/8th of 1 /8th of the royalty to be retained or reserved in any oil, gas, or mineral lease, leases, or contracts. It is not possible to interpret the unmistakably clear language of the deed to mean 1 /8th of 1 /8th of the total production, as the appellant would have us do.

It is also contended that the appellees are barred by adverse possession, limitations, laches, or estoppel from claiming that the appellant is entitled to only l/512th of the total production. Oil was first produced on a part of the land in 1963 and on other parts in later years. The appellees, without knowledge of the true facts, signed division orders which described their interest as being less than it should have been. Under those orders some overpayments were made to the appellant, and other payments were put in suspense accounts because the producing company was in doubt about the correct division of the oil runs. In this suit the appellees seek to recover their proper share of the money in the suspense accounts and their proper share of future production. They do not seek retroactive relief against the appellant, doubtless because they did sign the division orders that were followed by the producer.

In these circumstances the appellees’ claims are not barred on any of the grounds that are argued. There was no actual adverse possession of the oil and gas in place. In a case so similar as to be controlling we held that there was no adverse possession or acquiescence where the real title holders did not know that the company owning the oil runs was overpaying one royalty owner on the mistaken premise that his interest was twice as large as it actually was. Warmack v. Henry H. Cross Co., 237 Ark. 869, 377 S.W. 2d 47 (1964). That the appellant erroneously received and kept over-payments for several years does not give her any equitable ground for contending that the same error should continue in the future.

Affirmed.

We agree.

Harris, C.J., and Fogleman and Holt, JJ.


author: John A. Fogleman, Justice.

text:
    FARMERS INSURANCE COMPANY OF ARKANSAS v. J. W. HALL
    78-20
    567 S.W. 2d 296
    Opinion delivered June 26, 1978
    (Division I)

      Jones, Gilbreath & Jones, for appellant.

      Dewain W. Hodge, for appellee.
   John A. Fogleman, Justice.

Appellant Farmers Insurance Company of Arkansas issued an automobile insurance policy on January 3, 1974, to appellee J. W. Hall covering a 1974 pickup truck. Collision coverage was included. The term of the policy was six months. Appellee elected to renew the policy near the end of the original term and paid the required premiums. The new term was from July 3, 1974 until January 3, 1975. Appellant offered to renew the policy for another six month term upon payment of the premium prior to the expiration date. No premium was paid until appellee’s wife mailed a check for it on the morning of January 25, 1975, shortly before the insured vehicle was damaged in a collision. Hall sued for his damage, the amount of which was stipulated, after appellant denied the claim on the ground that appellee’s policy was not in force at the time of the collision. The trial court, sitting without a jury, rendered judgment for the appellee, holding that the policy was in force. Appellant asserts that the court erred because the policy expired by its own terms due to nonpayment of the premium and that the insurance cancellation statutes do not apply to a policy with a fixed expiration date where termination results from nonpayment of premium. We agree with appellant and reverse.

The policy contained a provision for an additional policy term of six months each time the company offered to renew by sending a bill for the required renewal premium and the insured paid the premium in advance of the renewal date. Appellant mailed an “Offer to Renew” to appellee on December 11,1974, stating that the policy renewal date was January 3, 1975 and that this would be the only notice given prior to the renewal date. This offer was received by appellee prior to the policy expiration date. On January 9, 1975, an “Important Expiration Notice” was mailed by appellant to appellee, who received it in due course of the mails. This notice provided that “although the due date has passed, you can still accept the company’s offer to renew your policy. Payment within 15 days after due date will renew your policy without interruption of coverage. Otherwise, your insurance will expire as of the due date, January 3, 1975.” Appellant considers this 15 day period as a grace period. Of course, the payment mailed on January 25, 1975, was not within this period. That payment was received by appellant on January 27, 1975.

On January 29, 1975, appellant mailed to appellee a notice entitled “Your Policy is Out of Force,” which was received by appellee on January 30 or 31. This notice advised: “May we suggest that you send your premium now? If received within 60 days from the expiration date shown your protection will again be in force from and after the date payment is received. You may pay one-half now and a small handling charge and the balance within 60 days. Coverage expired at 12:00 noon January 3, 1975.” Appellant then provided appellee with a “declarations sheet” showing the effective date of the policy to be January 27, 1975, with an expiration date of July 27, 1975. It was mailed on January 30 and received by appellee in due course of the mails. The mailing of the notice on January 29, after receipt of the check on January 27, was attributable to the fact that the notices originate in an installation in Los Angeles, California, and the receipt of the check on January 27 would not reach the computer in time to prevent the origination of a notice for mailing on January 29.

Appellant had no obligation to offer to renew the policy. The terms of the offer to renew were clear and unambiguous. They were not met. The “grace period” provided by it passed without the offer having been accepted. There was nothing whatever to indicate that the grace period would be extended. There was nothing in the policy or the governing law to require a revocation of the offer. It expired by its own terms. The offer clearly stated that if the payment was not made within 15 days, i.e., by January 18, the insurance would expire as of the due date, i.e., January 3. This is the usual and ordinary effect of failure to pay a premium within a grace period. The policy simply lapsed because of appellee’s failure to accept the offer to renew by payment or tender of payment within the time allowed. McClure v. State Farm Mutual Automobile Ins. Co., 113 Ga. App. 467, 148 S.E. 2d 475 (1966).

Appellant was not required to give notice of cancellation of the policy under Ark. Stat. Ann. §§ 66-4007 — 66-4013 (Supp. 1977). There was no cancellation of the policy. If the offer to renew had not been made, the policy would have expired by its own terms. Notice of cancellation of a policy may be required upon nonpayment of the premium under § 66-4008, but this requirement applies only to a cancellation by unilateral action of the insurer before the end of the policy term and not an automatic termination by expiration of the policy period. Shiaras v. Chupp, 61 Ill. 2d 164, 334 N.E. 2d 129 (1975); Morey v. Educator & Executive Insurers Inc., 45 Ohio St. 2d 196, 342 N.E. 2d 691 (1976). If, for example, this policy had been for a term of one year and the premium had been payable in semi-annual installments, cancellation of the policy during its term for nonpayment of a premium when it became due would be effective only if notice were given pursuant to the statute. The provisions as to cancellation have nothing whatever to do with termination of an offer to renew that expires by its own terms prior to acceptance. Anthony v. National Grange Mutual Ins. Co., 113 N.H. 486, 309 A. 2d 919 (1973). The payment by appellee after expiration of the policy term and after expiration of the offer to renew could only have the effect of providing coverage from the date of its acceptance by the company. See Blashfield, Automobile Law and Practice, Vol. 7, § 293.2 (pocket part); Bek v. Zimmerman, 285 Mich. 224, 280 N.W. 741 (1938).

The provisions of the act (Ark. Stat. Ann. § 66-4010) relating to notice of non-renewal were not applicable either. The language of this section clearly states that it does not apply if the insurer has manifested its willingness to renew or in case of nonpayment of premium. Anthony v. National Grange Mutual Ins. Co., supra. We are not unaware of State Farm Mutual Automobile Ins. Co. v. Brown, 40 Cal. App. 3d 385, 115 Cal. Rptr. 213 (1974). Not only do we find the reasoning in Shiaras, Morey and Anthony to be sounder, but we also find a difference in policy terms. The renewal was there automatic upon payment of the required premium prior to expiration date. Here the renewal was optional with the insurance company, not the insured.

The judgment is reversed and the cause dismissed.

We agree.

Harris, C.J., and George Rose Smith and Holt, Jj.


text:
    Earl Ray GARDNER v. STATE of Arkansas
    CR 77-196
    569 S.W. 2d 74
    Opinion delivered June 26, 1978
    (In Banc)
    [Rehearing denied September 5, 1978]

      Lesher & Franks, for appellant.

      Bill Clinton, Atty. Gen., by: Jesse L. Kearney, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Earl Ray Garnder was found guilty of the crime of rape in violation of Ark. Stat. Ann. § 41-1803 (Repl. 1977) and sentenced to five years imprisonment. He asserts the following points for reversal:

I
THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR DIRECTED VERDICT.
II
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT’S MOTION TO SUPPRESS THE CONFESSION.
III
THE TRIAL COURT ERRED IN REFUSING TO DISQUALIFY THE DEPUTY PROSECUTING ATTORNEY RESULTING IN A DENIAL OF THE DEFENDANT’S RIGHT OF CONFRONTATION OF ALL WITNESSES.
IV
THE COURT ERRED IN OVERRULING DEFENDANT’S MOTION THAT THE JURY HEAR THE ENTIRE TAPE OF THE DEFENDANT’S ALLEGED CONFESSION RATHER THAN A PORTION OF SAID TAPE AFTER THE JURY HAD BEEN RETIRED FOR THEIR DELIBERATION.
V
THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY THAT IT COULD RECOMMEND A SUSPENDED SENTENCE.
VI
THE COURT ERRED IN ALLOWING THE TAPED STATEMENT OF THE DEFENDANT TO BE PLAYED AND ADMI1TED INTO EVIDENCE OVER THE TIMELY OBJECTION OF DEFENDANT AS THERE WAS NOT A PROPER FOUNDATION LAID FOR ADMISSION OF SAID TAPE.
VII
THE COURT ERRED IN FAILING TO REVIEW THE TAPED INTERVIEW OF DEFENDANT IN CAMERA AFTER TIMELY REQUEST BY THE DEFENDANT.

I

Appellant’s argument on this point is directed to one issue only, i.e., that the state failed to prove beyond a reasonable doubt that all the elements of the crime took place in the State of Arkansas. He argues that, assuming that evidence of penetration was sufficient, there is no evidence that it took place in the State of Arkansas.

Although Ark. Stat. Ann. § 41-110 (Repl. 1977) provides that jurisdiction must be proved beyond a reasonable doubt, we are not to decide whether there is a reasonable doubt about the matter. Of course, the requirement for conviction by a jury is that it find the accused guilty beyond a reasonable doubt. Such a requirement, however, does not mean that, on appellate review, the reviewing court must also find that the evidence eliminates reasonable doubt. The test, on appeal, is whether there is any substantial evidence to support the findings of the jury, and we do not disturb a finding on a fact issue unless there is no substantial evidence to support it. Dennison v. Mobley, 257 Ark. 216, 515 S.W. 2d 215. There is no logical reason why a more stringent test of evidence should be applied on appellate review to one element of the overall fact-finding than to the overall question of guilt. Therefore, review of the evidence on the jurisdictional question does not require that we be persuaded beyond a reasonable doubt or that we find that a preponderance of the evidence supports the finding on jurisdiction. We only determine whether there is substantial evidence to support the finding.

The state is not required to prove jurisdiction unless evidence is admitted that affirmatively shows that the court lacks jurisdiction. Ark. Stat. Ann. § 41-110 (2) (Repl. 1977). The commentary to this subsection eliminates any argument that lack of proof on behalf of the state is equivalent to an affirmative showing. In other words, before the state is called upon to offer any evidence on the question of jurisdiction, there must be positive evidence that the offense occurred outside the jurisdiction of the court.

In this case, we might be justified in saying that there is no positive evidence that this alleged offense occurred outside Arkansas (i.e., in Texas). There is substantial evidence that it occurred in Arkansas. There was evidence that the rape occurred while Gardner and the alleged victim, a 16 year old girl named Sanders, were backseat passengers in Gardner’s automobile, which was being driven by Lynn Sullivan and in which Finis “Bubba” Toomer was then a frontseat passenger. The automobile had been driven from the victim’s home near Foreman, Arkansas, to Idabel, Oklahoma. There, according to Miss Sanders, Gardner, who had identified himself to her as Earl Jones, got in the back seat with her and Toomer, who had been in the back seat, then got in the front seat. From Idabel, the party apparently went into Texas, when the driver missed a turn that would have taken them into Arkansas from Oklahoma. Sanders testified that, along the way, the automobile was stopped and Toomer and Gardner pulled off Sanders ’ blue jeans and underpants and Gardner took his pants off. Then, according to her, Gardner got back into the back seat of the car and performed the acts constituting the rape. She did not know where they were at this time, but could see fields, wooded areas and a fence along the highway.

Lynn Sullivan, who was a student at Foreman High School, decided to go home while they were in Idabel. He was then driving and said he had intended to return to Foreman by going through Hayworth and Tom, Oklahoma, but missed a turn. He stated that he stopped the vehicle on a little road just outside of Foreman near the residence of David Walker, in Little River County, Arkansas. According to Sullivan, he got out of the car and saw Miss Sanders in the back seat with her pants off and Gardner on top of her with his body moving as if they were having sexual intercourse. He said that the group remained at this point for some 30 minutes after they stopped. Sullivan said that he had lived for eight years in the area in which the Walker house was located.

The prosecutrix testified that while Gardner was on top of her in the back seat of the car with his pants off, he tried to put his penis in her, and that it “went in but not far” and that although he was unable to have an erection sufficient to complete his entry, he did have sufficient erection to “penetrate me.” She was sure that he “entered her.”

It is not essential to a prosecution in this state that all the elements of the crime charged take place in Arkansas. It has been said that it is generally accepted that if the requisite elements of the crime are committed in different jurisdictions, any state in which an essential part of the crime is committed may take jurisdiction. State v. Scofield, 7 Ariz. App. 307, 438 P. 2d 776 (1968). Carnal knowledge of the victim is an essential element of the crime of rape by sexual intercourse. Kitchen v. State, 61 Okla. Cr. App. 435, 69 P. 2d 411. See also, State v. Lamb, 251 Ark. 999, 476 S.W. 2d 7. To say the least, a state has jurisdiction of a crime consummated within its borders. State v. Scofield, supra. Cf. Mortensen v. State, 214 Ark. 528, 217 S.W. 2d 325; Cousins v. State, 202 Ark. 500, 151 S.W. 2d 658. The crime of rape of a female by a male by sexual intercourse is consummated by his having carnal knowledge of the female. Miller v. State, 65 Okla. Cr. App. 26, 82 P. 2d 317 (1938). See also, Reed v. State, 175 Ark. 1170, 299 S.W. 757; Kitchen v. State, supra. The carnal knowledge required is a res in re, but to no particular depth. Poe v. State, 95 Ark. 172, 129 S.W. 292; McDonald v. State, 225 Ark. 38, 279 S.W. 2d 44. The penetration of the body of the victim need not be to any particular depth, so long as there is an entry of the labia by the male organ. Poe v. State, supra. It may be partial and slight. Hunt v. State, 114 Ark. 239, 169 S.W. 773, LRA 1915 B 131, Ann. Cas. 1916 D 533. Proof of the slightest penetration is sufficient. Scott v. State, 251 Ark. 918, 475 S.W. 2d 699. See also, Cabe v. State, 182 Ark. 49, 30 S.W. 2d 855. This element is usually described as penetration and is held to be sufficient not only to constitute the crime, but also to complete it. Hunt v. State, supra; Kitchen v. State, supra; Miller v. State, supra. See also, Poe v. State, supra; People v. Oatis, 74 Ill. App. 2d 103, 220 N.E. 2d 71. It is not necessary that penetration be proved by visual observation. It, like other facts, may be proved by circumstantial evidence. Whitmore v. State, 263 Ark. 419, 565 S.W. 2d 133; Needham v. State, 215 Ark. 935, 224 S.W. 2d 785.

The testimony of the prosecutrix and that of Sullivan were substantial evidence to support the trial court’s finding on the jurisdictional question. See Whitmore v. State, supra.

Appellant contends, however, that Lynn Sullivan was an accomplice, as a matter of law, and that his testimony on the jurisdictional question was not corroborated. Our rule on corroboration of an accomplice is based on Ark. Stat. Ann. § 43-2116 (Repl. 1977). The statute only requires corroborating evidence which tends in some degree to connect the accused with the crime. Underwood v. State, 205 Ark. 864, 171 S.W. 2d 304; Andrews v. State, 225 Ark. 353, 282 S.W. 2d 592; Bennett v. State, 201 Ark. 237, 144 S.W. 2d 476, 131 ALR 908; Shipp v. State, 241 Ark. 120, 406 S.W. 2d 361. Evidence tending to establish the guilt of the defendant is all the law requires. Stout v. State, 164 Ark. 553, 262 S.W. 641. It does not have to be sufficient of itself, when considered wholly apart from the testimony of the accomplice, to convict the accused of the crime charged. Andrews v. State, supra; Bennett v. State, supra; Underwood v. State, supra; Lauderdale v. State, 233 Ark. 96, 343 S.W. 2d 422; Anderson v. State, 256 Ark. 912, 511 S.W. 2d 151; Breed v. State, 198 Ark. 1004, 132 S.W. 2d 386. See also, Austin v. State, 254 Ark. 496, 494 S.W. 2d 472; Stout v. State, supra.

The corroborating evidence must relate to material facts which to go the “identity of defendant in connection with the crime.” Vaughn v. State, 58 Ark. 353, 24 S.W. 885. If the accomplice’s testimony is corroborated on those facts about which he testified going to “the identity of the defendant in connection with the crime,” the evidence is sufficient. London v. State, 204 Ark. 189, 161 S.W. 2d 207; Vaughn v. State, supra. The corroboration need only be of a character and quality which tends to prove defendant’s guilt by connecting him with the crime. Haskins v. State, 148 Ark. 351, 230 S.W. 5. The sufficiency of the corroborating evidence, if it tends to connect the accused with the crime, is a question for the jury. Ahart v. State, 200 Ark. 1082, 143 S.W. 2d 23. The statute is directed to proof of the offense, and not to proof of jurisdictional facts.

II

Appellant argues that a confession made by him should have been suppressed on his motion. He takes the position that the confession was the result of custodial interrogation during which he was assured by the interrogating officers that the statement could be withdrawn at any time after he had employed an attorney and that the statement was induced by a promise that, upon appellant’s coming to Ashdown from Oklahoma, he would be given an opportunity for a polygraph examination. He argues that the state’s witnesses, including the deputy prosecuting attorney, were untruthful and that the statement was extracted by, or made under the influence of, promises of benefits, express or implied.

We are unable to say that the finding of the trial court was clearly against the preponderance of the evidence, as we must before we can reverse the trial court’s holding. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515. Where the holding depends upon credibility of the witnesses, we must defer to the superior position of the trial court. Whitmore v. State, supra. The questions raised by appellant pertain to issues which could only have been decided on the basis of credibility.

At the Denno hearing on the motion, appellant and his father, Gulia Ray (Gus) Gardner, both of Duncan, Oklahoma, testified on behalf of appellant. They came to Ashdown to the sheriff’s office on November 29, 1976, knowing of the nature of the charges against appellant. They met Sheriff Marlin Surber and Joe White, the investigator for the prosecuting attorney’s office, who arrived at the sheriff’s office around 11:00 a.m. Gus Gardner testified that he received an affirmative response when he asked White whether a statement by Earl, if he should give one, would be used in court. This witness said that, when he said to the investigator, “Well, we might not want to give that, we came to take a lie detector test,” White said that it didn’t matter, the statement could be withdrawn and added that if the father chose to get an attorney later, the statement could be withdrawn and not used in court. The elder Gardner said that if he had not been so advised, he would not have permitted his son, who “looked up” to him for advice, to give a statement to anyone. He said nothing about Sheriff Surber’s participation in that conversation.

Earl Gardner testified that the only conversation with Sheriff Surber about use in court of any statement he might make took place between Sheriff Surber and his father. He stated on direct examination that he went ahead and gave the statement the state proposed to use in evidence because, although the sheriff said the statement could be used in court, the sheriff responded to his father’s statement that he did not want his son to give a statement that could incriminate him without a lawyer by saying that this was irrelevant, because he could hire a lawyer and have the statement withdrawn as evidence. On cross-examination, he said that he was mistaken in attributing the statements to Sheriff Surber and that they had been made by White. Appellant admitted that thereafter, and before he made any statement, the officers advised him that he had a right to a lawyer before any questions were asked if he wanted one, and that if he made a statement it could and would be used against him in court.

Joe White testified that he advised appellant that anything he said could be used against him in court; that he had a right to a lawyer before and during questioning, that if he could not afford a lawyer, one would be appointed for him by the court before questioning if he desired; that, if he decided to answer questions, he would have the right to stop answering at any time; and that he had a right to waive his right to counsel and the right to remain silent and answer questions or make a statement without consulting a lawyer if he desired. He said that, in response to separate questions directed to appellant about each such right, appellant answered that he understood each. White testified that he did not remember any reference to an attorney by either appellant or his father. He denied every having said that a statement could be stricken if an attorney was employed. He said that, after his conversation with appellant, and a statement had been given, appellant’s father asked if he should get a lawyer. White said that he then advised the father to do so.

Sheriff Surber corroborated White’s testimony about the advice given appellant as to his rights and about appellant’s acknowledging his understanding of them. He denied any knowledge of any conversation prior to the statement with reference to hiring an attorney. He denied that he had ever told Mr. Gardner that he could employ a lawyer and any statement by appellant could not be used against him in court.

Gus Gardner testified that he brought his son to Ashdown with the understanding that he was to have a polygraph examination and that the arrangements had been made through Eric Bishop, the Deputy Prosecuting Attorney for Little River County, during a telephone conversation on Sunday, the day before the statement was made. He said that he had asked Bishop if appellant came there and took a lie detector test and passed it whether that would clear him of the charge and that Bishop answered in the affirmative. Gus Gardner said that the only purpose for coming to Ashdown was for a polygraph test, that he had been assured that the matter could be concluded in one day, and that Bishop had told him that the sheriff would have to arrange for the test. He stated that as soon as Sheriff Surber arrived at the sheriff’s office on Monday, he told Surber of his conversation with Bishop and that they wanted to get the test set up as quickly as possible, get the matter resolved and get back home. According to Gus Gardner, the sheriff agreed to set up the test and to call the polygraph operator in Little Rock, saying that it was a “good hour’s drive” to Little Rock, or maybe more, and that they would have to be in Little Rock by 1:00 p.m. He said that, after Surber had assured him that the test was scheduled, he told the sheriff, when the officer inquired, that he did not care if the officers talked to his son, but that he would like to get the polygraph taken as soon as possible. Gus Gardner testified that he told White that they needed to get to Little Rock for this lie detector test as soon as White arrived and asked Earl to come into a room where White had set up a tape recorder. Earl Gardner testified that he came to Ashdown under the impression that he was going to take a lie detector test. At the trial, he testified that there was an understanding that “we” were to have this interview before “we” went and took the polygraph examination.

Eric Bishop testified that he had no recollection of a conversation with Gus Gardner about a polygraph and that he was not a party to, or aware of, a conspiracy to trick appellant into coming to the sheriff’s office so a statement could be taken from him. Gus Gardner said that Bishop was not telling the truth.

Sheriff Surber said that he did not advise the elder Gardner that he had caused a polygraph test to be set up in Little Rock and that he needed to be there by 1:0Q p.m. any day, and denied that he ever said that it would take about an hour to drive to Little Rock. Actually, according to Surber, it would take 1 Vi to 2 hours driving at high speed and 2 Vi hours if the speed limit was observed. He said that the possibility of a polygraph test had been discussed, but that he did not arrange for one to be made in Little Rock.

Joe White remembered that there were discussions about a polygraph examination. He said that appellant said, while being interviewed by White, that he wanted to take a polygraph examination, but that he did not recall discussing it with appellant prior to the interview and that he did not recall appellant’s having said that his reason for coming to Ashdown was to take a polygraph test. He admitted that when appellant expressed a desire to take a polygraph test, he told appellant where they would have to go, that going was a burden and an expense, and if one wasn’t telling the truth, he wouldn’t pass the test.

After this testimony, the motion to suppress was denied. The statement, recorded on tape, was never played during the suppression hearing and there is no indication that the trial judge ever heard it until it was played during the trial. During the trial, objections were made to the playing of the tape on other grounds and appellant moved to suppress it on the ground that a proper chain of custody had not been shown and that it was prejudicial because its content was not reduced to writing so certain questions could be deleted. Appellant also moved that all testimony regarding the voluntariness of the statement be stricken after the tape had been played before the jury, but no objection was then made to the introduction of the statement recorded on tape on the ground that it was involuntary. No motion was made to strike the statement on the ground that it was involuntary. Under these circumstances, the trial court cannot be held to have erred in ruling on the admissibility of this evidence on the basis of evidence adduced after its ruling was made. Whitmore v. State, supra.

During his testimony at the trial, White admitted that he had a conversation with Gus Gardner prior to appellant’s waiver of his rights and that both father and son were very cooperative. White also testified at this time, that he had told appellant that before any polygraph examiner could tell whether he was telling the truth, he was going to have to say something. He also said that appellant gave his version of what had happened on the night in question, after having previously indicated that he wanted to take a polygraph examination. He also said that before he commenced his interview of appellant the senior Gardner had said that he wanted appellant to have a polygraph test. White said that, after the interview was complete, the Gardners indicated that they did not want a polygraph examination.

The tape revealed that, at the conclusion of Gardner’s statement of his third version of the events giving rise to the charge, Sheriff Surber had stated that appellant was wasting his father’s time “wanting to go take a polygraph on the tale he is telling now” and, addressing appellant, “Your dad is here to help you. I think it is a waste of time.”

Only by saying that the testimony of the officers was not credible could we say that the testimony of the Gardners, the two most interested witnesses, preponderated over that on behalf of the state. This we cannot do.

It is quite clear that appellant and his father both understood the explanation of appellant’s rights that included advice that anything he said could be used against him in court, that he was entitled to have an attorney present during the questioning and to have an attorney appointed by the court if he could not afford to employ one and that he could stop the questioning at any time, if he chose to answer questions without having counsel. It is also clear that this advice was given after the conversation the Gardners say took place about the withdrawal of the statement — a conversation that the officers say never took place.

It is extremely difficult to comprehend appellant’s arguments about the polygraph examination. The only basis for saying that the interrogation of appellant by White (probably assisted by Surber) was involuntary, turns upon the factual question pertaining to the alleged agreement that the statement could be withdrawn. Appellant urges that we play the tapes so that we may judge by the tone of White’s voice and his language whether White was attempting to convince appellant that it was useless for him to take a polygraph test and that he could not pass the polygraph. White’s language was abstracted by appellant. There were no threats in his words. Telling one that, if he was not telling the truth, he would not pass the test is not a threat. Commonwealth v. Hippie, 333 Pa. 33, 3 A. 2d 353 (1939). Neither is telling one who is making a statement that he has not told the truth, particularly when he is told that the basis of that opinion is the fact that the similar stories of the victim and the two other boys along were unlike the one he is telling, but that the interrogator could only ask him to tell the truth and would not tell him what to say or tell him what others had said and then let him confirm their version. See Commonwealth v. Jones, 341 Pa. 541, 19 A. 2d 389 (1941). Any idea of threatening would be dispelled by White’s recorded statement that appellant knew the truth and it did not matter to White whether appellant got his business straight or not. The tape also discloses that appellant had a discussion with his father and then admitted that he had previously omitted some things before giving his last version of the events in question.

We are not aware of any constitutional prohibition against an interrogator trying to persuade an accused to tell the truth or to answer questions so long as there is no questioning after the accused elects to remain silent and there is no coercion or promise of leniency or reward for answering questions or making a statement, even though there may be misrepresentations of fact made by the interrogator, so long as the means employed are not calculated to procure an untrue statement and the confession is otherwise freely and voluntarily made with an understanding by the accused of his constitutional rights. Tucker v. State, 261 Ark. 505, 549 S.W. 2d 285. Persistent questioning based upon the interrogator’s assumption of the accused’s guilt will not make a resulting confession involuntary. Greenwood v. State, 107 Ark. 568, 156 S.W. 427.

Appellant was 18 years of age; he was a high school graduate; he admitted that he understood all the words contained in the waiver of rights he signed; he had the benefit of parental advice at some time during the interrogation; the father and son both knew exactly what the accusation was; and the officer declined to narrate his version of the crime and there is no evidence that he misrepresented any fact to appellant. There is even a valid question about the interrogation being custodial. Even appellant admits that he did not consider himself to be under arrest until after his statement was concluded. In every respect there is a far stronger showing of voluntariness than there was in Tucker, where we upheld the trial court’s holding that the confession was voluntary.

Appellant seems to be attempting to equate the disputed promise of a polygraph examination with a promise of a benefit in order to extort a confession, citing Freeman v. State, 258 Ark. 617, 527 S.W. 2d 909. In Freeman, we found that the accused was justified in feeling that there was an implied promise of leniency in the prosecuting attorney’s statement that, if the accused in that murder case had committed a crime, it was probably one that would not result in more than 21 years’ incarceration. Even if there was a promise of a lie detector test, it was not an implied promise of leniency. The results of the test would not have been admissible in evidence. 29 Am. Jur. 2d 923, Evidence, § 831; 22A CJS 525, Criminal Law, § 645 (2). Cf. Smith v. State, 240 Ark. 771, 402 S.W. 2d 412, cert. den. 385 U.S. 980, 87 S. Ct. 528, 17 L. Ed. 2d 442. But it is only the result of the test that is inadmissible. Statements made prior to, . and in preparation for, a polygraph test, which the accused has voluntarily agreed to take, would not be involuntary for that reason, if otherwise voluntary and the fact that the statements were so made would only be one factor to be considered on the question of voluntariness. Tanner v. State, 259 Ark. 243, 532 S.W. 2d 168; People v. McHenry, 204 Cal. App. 2d 764, 22 Cal. Rptr. 621 (1962). Incriminating statements and admissions freely and voluntarily made in anticipation of, during, and subsequent to, or as a result of, or interrogation with, a polygraph test or examination, to which the accused voluntarily submits, are admissible in evidence, if they are not otherwise involuntary. Roberts v. State, 195 So. 2d 257 (Fla. App., 1967); Johnson v. Florida, 166 So. 2d 798 (Fla. App., 1964); Gasway v. State, 157 Tex. Cr. App. 647, 248 S.W. 2d 942 (1952); Webb v. State, 163 Tex. Cr. App. 392, 291 S.W. 2d 331 (1956); Commonwealth v. Hipple, supra; State v. Traub, 150 Conn. 169, 187 A. 2d 230 (1962), vacated 374 U.S. 493, 83 S. Ct. 1899, 10 L. Ed. 2d 1048, on remand 151 Conn. 246, 196 A. 2d 755, cert. den. 377 U.S. 960, 84 S. Ct. 1637, 12 L. Ed. 2d 503.

Ill

Appellant contends that the trial court erred in denying its motion to disqualify Deputy Prosecuting Attorney Bishop from further participation in the case after he had testified during the Denno hearing. The motion was made just after the circuit judge had denied appellant’s motion to suppress. Ultimately it was grounded on the fact that appellant desired to have the benefit of the testimony of Bishop. The gist of appellant’s argument is that he was deprived of the right to use Bishop as a corroborating witness during the trial on the question of voluntariness of the incriminating statement in connection with the alleged promise of a polygraph examination of appellant. The prosecuting attorney stated that he did not plan to call Bishop as a witness during the trial. The trial court ruled that he would not permit the state to call Bishop as a witness, but that appellant was not precluded from calling him. The trial court correctly held that appellant could call Bishop if he desired to do so. The rule against a lawyer acting both as an advocate and a witness was not designed to permit a lawyer to call opposing counsel as a witness and thereby disqualify him as counsel. McCoy Farms, Inc. v. J & M McKee, 263 Ark. 20, 563 S.W. 2d 409 (1978). Appellant did not attempt to call Bishop as a witness, even after the court held that he could if he desired to do so. There was no error on this ground.

IV

Appellant argues that the trial court erred in replaying only that portion of his taped statement that the jury asked to hear after its deliberations had commenced. We are handicapped in properly evaluating this contention because the proceedings at that point are not abstracted. The jury had heard the entire tape during the trial. It seems clear that the jury asked only for a particular portion of the taped statement. The state points out that at the time this request was made, the jury advised the judge that it had reached a verdict as to appellant’s guilt, but that it was having difficulties as to the punishment and desired to hear this portion of the tape in order to assist it in fixing punishment. The jury heard this portion, which appears to have been that part in which appellant was supplying details he said he had previously omitted. During that part he told of laying the girl down on the back seat; placing his hand on her throat; putting her hair in the window, with Toomer’s assistance, to keep her from sliding down in the seat; the girl’s protesting and crying; his making motions with his pants down and his penis out, as if he were having intercourse, trying to effect an erection, and penetrating her but quitting when he was unable to attain an erection. It is true that earlier in the recorded statement appellant had denied his guilt, and had denied that he had ever penetrated the alleged victim.

The procedural statutes and rules do not expressly cover this exact situation. The closest approach to this matter is Ark. Stat. Ann. §§ 43-2138 and 43-2139 (Repl. 1977). The former relates to jurors taking papers introduced in evidence into the jury room during deliberations. We have considered that the trial court has some discretion in permitting exhibits, and even one of several exhibits, to be taken into the jury room during deliberations. See Nathan v. State, 235 Ark. 704, 361 S.W. 2d 637; Ford v. State, 220 Ark. 517, 248 S.W. 2d 696; Holub v. State, 130 Ark. 245, 197 S.W. 277; Harshaw v. State, 94 Ark. 343, 127 S.W. 745. Technically, appellant’s statement, on the record of his interview with White, was introduced as an exhibit to White’s testimony. Ark. Stat. Ann. § 43-2139 requires that, if there be disagreement among the jurors as to any part of the evidence, the information required must be given in the presence of, or after notice to, the counsel of the parties. We have held this statute to be mandatory, at least in some respects. Golf v. State, 261 Ark. 885, 552 S.W. 2d 236; Andrews v. State, 251 Ark. 279, 472 S.W. 2d 86. The recorded interview was certainly evidence.

Ordinarily, when the testimony of a witness is involved, and a statute similar to § 43-2139 does not govern, limitation of the repetition of the testimony to only that portion of the testimony requested by the jury during its deliberations is a matter resting in the discretion of the trial court. Price v. State, 437 P. 2d 330 (Alaska, 1968); State v. Cari, 163 Conn. 174, 303 A. 2d 7, 72 ALR 3d 608 (1972); Commonwealth v. Peterman, 430 Pa. 627, 224 A. 2d 723 (1968); State v. Wolf, 44 N.J. 176, 207 A. 2d 670 (1965); State v. Ritchie, 46 Wis. 2d 47, 174 N.W. 2d 504 (1970), cert. den. 400 U.S. 917, 91 S. Ct. 176, 27 L. Ed. 2d 156; People v. Kasem, 230 Mich. 278, 203 N.W. 135 (1925); State v. Miller, 2 Or. App. 353, 467 P. 2d 683 (1970).

In some jurisdictions having statutes virtually identical to § 43-2139, even when some provisions are held to be mandatory, as we have held, the granting of a jury’s request for the reading of particular testimony and the extent of testimony to be repeated are within the discretion of the trial court. See, Savage v. State, 525 P. 2d 1219 (Okla. Cr. App., 1974); Jones v. State, 456 P. 2d 610 (Okla. Cr. App., 1969); Smith v. State, 509 P. 2d 1391 (Okla. Cr. App., 1973); Fosberry v. State, 509 P. 2d 911 (Okla. Cr. App., 1973). Even where the provision that the “information required” be given upon the jury’s request is considered mandatory, it is not necessary that more be repeated than is sufficient to answer the particular inquiry or request of the jury. See, e.g., People v. Carmical, 258 Cal. App. 2d 103, 65 Cal. Rptr. 504 (1968). And in some jurisdictions where repeating the evidence at the jury’s request is mandatory, it has been held that the trial judge has discretion as to the extent and circumstances in which the reading of testimony may be employed. See La Monte v. State, 145 So. 2d 889 (Fla. App., 1962); Nelson v. State, 148 Fla. 338, 4 So. 2d 375 (1941).

It is usually held, however, that restricting the repetition of evidence to that requested by the jury is not prejudicial error or an abuse of discretion. See Stone v. U.S., 506 F. 2d 561 (8 Cir., 1974), cert. den. 420 U.S. 978, 95 S. Ct. 1405, 43 L. Ed. 2d 659; State v. Favors, 92 Ariz. 147, 375 P. 2d 260 (1962); Kovash v. State, 519 P. 2d 517 (Okla. Cr. App., 1974), cert. den. 419 U.S. 830, 95 S. Ct. 52, 42 L. Ed. 2d 55; People v. Cathey, 186 Cal. App. 2d 217, 8 Cal. Rptr. 694 (1960). See also, Annot. 50 ALR 2d 176, 192. In State v. Wolf, supra, the New Jersey Supreme Court stated that the jury’s request should be granted in the absence of some unusual circumstance, that the jury should not be burdened with unnecessary reading they do not indicate a need to hear, and that it is not error to decline to read further portions of the evidence simply because a party demands it. It has been appropriately said that justice is more likely to be promoted than obstructed if the jury, at its request, is allowed to rehear an electronic recording of specific testimony given at the trial. Price v. State, supra. It has also been held that the trial court’s action should not be reversed in the absence of flagrant abuse of discretion. State v. Wolfe, 194 Kan. 697, 401 P. 2d 917 (1965).

The matter is treated in the American Bar Association Standards Relating to Trial by Jury (Approved Draft, 1968) in § 5.2, which provides that the jury’s request should be granted, if reasonable, and that the court need not submit evidence beyond that specifically requested by the jury, but, in its discretion may also have the jury review other evidence relating to the same factual issue so as not to give undue prominence to the evidence requested.

It seems to us that the better approach is for the trial court to honor any request of a jury to hear specific evidence, in the absence of some compelling reason why it should not be granted, and that the action of the trial couft in doing so should not be reversed in the absence of a manifest abuse of discretion. See Bradshaw v. State, 211 Ark. 189, 199 S.W. 2d 747; Bennefield v. State, 62 Ark. 365, 35 S.W. 790 (overruled on another point, Tallman v. State, 151 Ark. 108, 235 S.W. 389, dissenting opinion, 236 S.W. 281). The action of the trial court in limiting the evidence reread or repeated to that specifically requested or in denying the request of a defendant to reread or repeat other evidence should not be reversed in the absence of a clear abuse of discretion. We find no abuse of discretion.

Since it was obvious that the jury had already passed on the question of appellant’s guilt, it also seems that the jury must have found the portion of appellant’s statement they wanted to hear. In the light of these facts and the jury’s assessment of the minimum punishment, it is manifest that appellant suffered no prejudice.

V

Appellant requested one instruction by which the jury would have been instructed that the court could, in its discretion, suspend the imposition of sentence or place the defendant on probation and the jury might by its verdict, recommend suspension of all or any part of the sentence or probation. He also requested a rather lengthy instruction advising the jury of all the conditions the court might impose in case of suspension and in case of probation, the possible period of suspension or probation and the power of the court to modify such conditions. This instruction contained advice to the jury that its recommendations would be considered by the court but that the court was not bound thereby. The giving of either instruction would have been error.

We have heretofore taken the position that the matter of suspension of sentence is to be determined by the trial court and lies within its discretion and that no statement should be made by the trial court that would lead the jury to think that a suspended sentence would be granted. Andrews v. State, 225 Ark. 353, 282 S.W. 2d 592; Tucker v. State, 248 Ark. 979, 455 S.W. 2d 888; Clayton v. State, 247 Ark. 643, 447 S.W. 2d 319. We have said, however, that it was proper for the trial court to answer proper inquiries by the jury relating to the law governing recommendations of a suspended sentence. Pendleton v. State, 211 Ark. 1054, 204 S.W. 2d 559.

We have approved proper instructions on the role of the court and jury in matters pertaining to suspension of sentences where requests for information on the subject have been made by the jury. There is no reason why questions as to probation should be treated differently. We do not approve the giving of such instructions in the absence of a request by the jury.

Appellant argues that the procedures must be changed because of Ark. Stat. Ann. § 41-802 (Repl. 1977) relating to the role of the court and jury in fixing punishment. Sec. 41-802 (2) provides that the court shall fix punishment in certain enumerated cases, but no mention is made of suspension or probation of the offender. The section also provides that, if a defendant is found guilty, the jury shall fix punishment under Ark. Stat. Ann. §§ 41-[ XXX-XX-XXXX ] (Repl. 1977). Obviously, the word court in the context of these sections refers to the judge, and not the judge and jury, just as it does in the context of our previous decisions on the subject. It is obvious to us the word also means the same in Ark. Stat. Ann. §§ 41-1201 — 41-1211 (Repl. 1977). Thus, appellant’s argument must fail.

VI

Appellant next contends that the taped statement of appellant was erroneously played for the jury and admitted into evidence over his objection that a proper foundation was not laid by showing a chain of custody that insured that the tape contained the same information as that originally recorded. Appellant urges a number of elements he now contends were essential to a proper foundation for the admission of this evidence which were not mentioned in any objection during the trial. We do not consider these questions because they were raised for the first time on appeal. The only objection raised in the trial court pertains to the chain of custody.

In Webb v. StaTe, 253 Ark. 448, 486 S.W. 2d 684, we held that a tape recording was admissible when a deputy prosecuting attorney who made the recording testified without contradiction that the tape was an accurate recording of the interview. The cassette tape of the conversation between White and Gardner was in White’s briefcase which was not locked. White said that he was “almost sure” that he took this tape with him to Nashville, where it was under lock and key in his office, or taken to his home. He said that on one night it had been in the possession of the prosecuting attorney, but that he had never left it with the sheriff. White said that he had listened to the tape at his home and had listened to it on the morning before he testified as he rode to Ashdown with the prosecuting attorney, that it was the same as the recorded interview, and had not been altered. There was no abuse of discretion in admitting this evidence.

Minor uncertainties in proof of chain of custody are matters to be argued by counsel and weighed by the jury, but they do not render evidence inadmissible as a matter of law. Rogers v. State, 258 Ark. 314, 524 S.W. 2d 227, cert. den. 423 U.S. 995, 96 S. Ct. 423, 46 L. Ed. 2d 369. The circumstance that the tapes were not kept under lock and key was merely a circumstance going to the weight to be given the evidence, not its admissibility. Bedell v. State, 260 Ark. 401, 541 S.W. 2d 297, cert. den. 430 U.S. 931, 97 S. Ct. 1552, 51 L. Ed. 2d 775. We do not say that the chain of custody of the tapes is insignificant, but when there is little likelihood that there has been any tampering with an exhibit, admission into evidence is not an abuse of discretion. Appellant’s counsel stated that he was not accusing anyone of altering any tapes, but was saying that there was a possibility that they might have been altered.

The purpose of the rule requiring a chain of custody is to prevent the introduction of evidence which is not authentic. It is not necessary that the state eliminate every possibility of tampering, if the trial court is satisfied that in reasonable probability the evidence had not been tampered with. In such matters, the trial judge is accorded some discretion, in the absence of evidence indicating tampering with the evidence, and we will not reverse the trial judge’s ruling unless we find an abuse of discretion. Wickliffe v. State, 258 Ark. 544, 527 S.W. 2d 640. We find none here.

VII

The trial judge refused appellant’s request that the trial judge review the tape recording in camera. Appellant complains that his attorney was forced to attempt to object to various portions of the interview while it was being played before the jury and that the court was compelled to instruct the jury to disregard certain portions of the tape and appellant moved for a mistrial. Appellant says that he was prejudiced by the necessity for his attorney having to repeatedly prevent the playing of the tape and the court’s admonition did not correct this prejudice. Although appellant says that he was unable to properly exclude certain inflammatory remarks and expressions of opinion of guilt by the state’s witness, he points out only one, i.e., the statement of White about his belief that appellant had not told the truth before appellant gave his second version of the events during the night of the alleged crime.

It seems that appellant’s attorney had an opportunity to make a transcription of the "tape and prepare objections before trial. The procedure followed permitted appellant’s attorney to object before the portion of the tape he found objectionable was played and if the court sustained the objection, that portion was deleted. We are unable to find any prejudicial error in this procedure.

Since we find no reversible error, the judgment is affirmed.

Hickman, J., concurs.

Byrd, J., would suppress the confession.


author: Conley Byrd, Justice.

text:
    Jack B. WILSON v. STATE of Arkansas
    CR 78-38
    569 S.W. 2d 87
    Opinion delivered June 26, 1978
    (Division II)
    [Rehearing denied September 5, 1978.]

      Hurst & Tapp, by: Q. Byrum Hurst, Jr., for appellant.

      Bill Clinton, Atty. Gen., by: Jesse L. Kearney, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

On July 7, 1977, the State of Arkansas filed an information charging the appellant with theft of property in excess of SI 0,000.00 in violation of Arkansas Statutes 41-2203. The information alleges the theft to have occurred on June 2, 1977.

The evidence presented at trial showed that appellant was employed by the Weyerhaeuser Company in Dierks, Arkansas, as weighmaster and had the job of weighing and recording the inflow of raw materials (logs) into the company log yard, which records were used to calculate the payment due the suppliers of the logs.

Company officials became aware of certain discrepancies in the records of deliveries of logs and suspected that fraudulent weight tickets were being distributed at the scales. Two employees of the company were assigned to maintain surveillance of the weigh scales and report all deliveries.

During the dates of May 31, through June 6, 1977, the reports made by the employees assigned to observe the inflow of logs, showed a discrepancy in the weighmasters’ report from the period of 3:30 p.m. to 5:30 p.m. of each day of observation. At such time and on said days, the appellant, Jack B. Wilson, was the weighmaster on duty, working alone.

Upon confirming the discrepancy, the company officials thoroughly examined the records of deliveries, going back from June 6, 1977, to January, 1977. Throughout the period reviewed, a total of 82 tickets were concluded to be invalid and fraudulent, valuing a total of $39,587.00. The witness states with positive certainty that over $15,000 worth of the 82 tickets were in fact invalid.

The state also introduced without contest the confession by appellant given on June 7, 1977. This confession was read to the jury in its entirety. At the end of the appellant’s trial, the jury returned a verdict against the appellant, finding him guilty of theft of property in excess of $10,000.00 and sentenced him to prison for 3 years and a fine of $5,000.00. The Court entered judgment thereon.

From this judgment and sentence, the appellant brings this appeal raising the issues hereinafter discussed.

POINT I. Appellant contends that the court erred in admitting evidence that appellant had violated Ark. Stat. Ann. § 41-2203 (Repl. 1977), except as to June 2, 1977, the date stated in the information. We find no merit to this contention. Ark. Stat. Ann. § 43-1015 (Repl. 1977), provides:

“The statement in the indictment, as to the time at which the offense was committed, is not material, further than as a statement that it was committed before the time of finding the indictment, except where the time is a material ingredient of the offense.”

Furthermore, Ark. Stat. Ann. § 41-2202(3) (Repl. 1977) provides: “. . . amounts involved in theft committed pursuant to one (1) scheme or course of conduct, whether from one or more persons, may be aggregated in determining the grade of the offense.” Since the information alleged theft of property in excess of $10,000, appellant could not have been misled by the date in the information.

POINT II. After a witness for the State had testified to 82 fraudulent weight tickets, the trial court determined that the witness could not, with reasonable certainty, say that all of the 82 tickets were fraudulent. At that time the trial court limited the testimony of the witness to some 32 tickets involving over $15,600. We cannot say on the record before us that the trial court erred in refusing to declare a mistrial. See Gammel & Spann v. State, 259 Ark. 96, 531 S.W. 2d 474 (1976).

POINT III. Present counsel contend that the trial court committed reversible error in permitting appellant’s confession to be introduced without a “Denno” hearing. The record shows that when the issue arose, the trial court made inquiry about the matter and that appellant’s counsel in open court waived any objections to the introduction of the confession and agreed that the confession was constitutionally proper. Appellant later took the witness stand and testified with reference to the statement without giving the court any indication that he did not condone the act of his counsel in making the agreement about the confession. On the record before us, we must hold that the “Denno” hearing was waived.

POINT IV. On cross-examination appellant was asked about the total value of the alleged 82 fraudulent tickets. The trial court sustained appellant’s objection to the question and appellant was never called upon to answer the question. Upon the record before us, we cannot say that the trial court erred in refusing appellant’s motion for a mistrial.

Affirmed.

We agree: Harris, C.J., and Hickman and Howard, JJ.


author: Darrell Hickman, Justice.

text:
    Carl FRAZIER & Gradie Frazier KIRBY v. Fred FRAZIER
    78-23
    567 S.W. 2d 629
    Opinion delivered June 26, 1978
    (Division II)

      Sanders & Busby, Ltd., for appellants.

      McMillan, Turner & McCorkle, for appellees.
   Darrell Hickman, Justice.

This is an appeal from a decision in the Clark County Chancery Court affecting the ownership of 215 acres of land. The case originated when some of the heirs of Sam and Cadder Frazier filed a suit to partition the land. The suit was filed by five of the Frazier heirs or their representative on September 25, 1974. The suit was resisted by the remaining heirs, Carl Frazier and Gradie Frazier Kirby — the appellants here. The appellants filed with their pleadings a warranty deed conveying the 215 acres to Gradie. They argued the deed was signed by their mother, Cadder, after the death of their father. The appellants moved for summary judgment alleging that title to the 215 acres was Gradie’s and, therefore, partition of the land would not lie. The chancellor denied the motion and after determining that the deed was, in fact, a forgery, ordered partition of the land.

The appellants appeal from the decision of the chancellor alleging seven errors, most of which relate to the chancellor’s rulings regarding the deed. We find no merit in their arguments and affirm the judgment of the chancellor.

Sam and Cadder Frazier, both deceased, had seven children who are represented by the parties to this lawsuit. Sam Frazier died in January, 1964: there was no division of his property by deed or probate. His wife, Cadder, died in May, 1972, and there was still no division of the property at that time by probate or recorded deed.

Testimony used to establish title to the 215 acres revealed that most, but not all, of the 215 acres was held by the entirety by Sam and Cadder Frazier. No deed was found granting the Fraziers 75 acres og the 215 acres in question by the entirety. Therefore, Gadder only had a dower interest in that land. Because the instrument offered as a deed by the appellants was to the entire 215 acres, if, in fact, the land was not held by the entirety by Sam and Gadder Frazier, then, of course, the deed could not affect the 75 acres.

It was not until this lawsuit was filed that this deed was offered and it can best be described by reproduction:

It was conceded by all the parties that this deed was not properly acknowledged. Gradie Frazier Kirby, the grantee, testified that after having a lawyer draft the deed in 1966, she took the instrument with her to Oregon. She returned to Arkansas the next year and had her mother, Cadder, sign a copy of the deed rather than the deed itself. Gradie first recorded the signed copy and the unsigned original in Dallas, Texas. Despite several attempts, she was unable to have the instrument properly recorded in Clark County, Arkansas. However, she succeeded in getting the instrument recorded, together with a note purported to be in the handwriting of Cadder, in the Miscellaneous Book of Records in Clark County, Arkansas. This was done in August, 1974, after this lawsuit was filed. A “Proof of Handwriting of the Grantor” signed by a justice of the peace on December 1974, some two years after the death of Cadder is on the back of the deed. It was also executed after this lawsuit was filed.

It is the appellants’ argument that the deed was valid — vesting title to Gradie — and a partition suit could not therefore be maintained. Appellants also maintain that the court’s ruling that the deed was a forgery, as well as not being subject to recordation, was erroneous.

It is a correct statement, of course, that generally partition will not lie where the title to the land is in dispute. Hankins v. Layne, 48 Ark. 544, 3 S.W. 821 (1886). However, in this case there is no question of adverse possession, and the dispute as to title was raised in a motion for summary judgment. The chancellor ruled that since the deed was not properly acknowledged it was not and could not be properly recorded. Also, the attempt to correct this deficiency did not comply with Arkansas law. The court, referring to Ark. Stat. Ann. §§ 49-209 and 49-210 (Repl. 1971), held that these statutes require that two witnesses to a signature on an instrument actually witness the signing of the instrument rather than testify as to the authenticity of the signature. This is a correct interpretation of the law. In this case the deed was not properly acknowledged and this deficiency was not cured by the attempt after the grantor’s death to authenticate the signature. Therefore, this instrument was not entitled to the weight given to a properly recorded deed.

Summary judgment, of course, is not granted if there is a dispute as to the facts. See Griffin v. Monsanto Co., 240 Ark. 420, 400 S.W. 2d 492 (1966). A fact question was raised as to the validity of the deed and the title to the 75 acres in response to the motion for summary judgment.

After listening to the testimony of the parties and viewing the instrument and other writings in the handwriting of Cadder, the court concluded that the signature on the deed was a forgery. The appellants argue that the court was wrong in making this finding and filed a motion for a new trial attaching to the motion an affidavit by an expert witness who stated that the signature was, in fact, that of Cadder. The court, in denying the motion, quite frankly recited its reasons. The court questioned the strange circumstances surrounding the deed: why it was only witnessed by Gradie; why there was no recordation for several years; why only the copy of the deed was signed and not the deed itself; why it was signed a year after the deed was dated; and, why Gradie was the only one to discuss this transaction with Cadder Frazier. Another deed, not in issue, was apparently signed at the same time as the deed in question. It concerned lots in Delight, Arkansas. However, it was recorded during the lifetime of Cadder Frazier. The chancellor did not believe the witness who brought forth the deed — Gradie Frazier Kirby. After listening to all of the peculiar circumstances surrounding the execution of the instrument, and viewing documents which were purportedly in the handwriting of the grantor, the court concluded that the deed was a forgery. The court also ruled that there was no evidence offered with the motion for a new trial that could be considered newly discovered evidence as defined by Arkansas law. The court concluded that all parties were on notice that forgery was an issue. We find no error on the part of the chancellor in denying the motion for a new trial.

The appellants argue the chancellor had no basis for finding the signature was a forgery. In this case the question of a forgery was an ultimate fact to be decided. It is, indeed, the duty of the chancellor to decide the ultimate facts. In this case the chancellor ha^J the duty and responsibility, after hearing the evidence, to make such a decision. We cannot say his decision was against the preponderance of the evidence. Mercantile Bank v. Phillips, 260 Ark. 129, 538 S.W. 2d 277 (1976).

After denying the motion for summary judgment and other pretrial motions, the court went on to find that the appellees were entitled to partition of the land. There is no doubt in our judgment that the court was correct in first denying the motion for summary judgment, which involved the question of the deed. Having disposed of that issue, the court was then in a position to deny or grant partition of the land. Therefore, we find no conflict on the question of whether chancery has jurisdiction to order partition when title to land may be an issue. The chancellor had jurisdiction of the case to determine the title dispute. He could properly retain jurisdiction for partition purposes once the title question was resolved. See Hankins v. Layne, supra.

The appellants had the burden of proving that they had title to the land. Their testimony and the offered instruments failed to meet that burden in the judgment of the chancellor. After a review of the record and a consideration of each allegation of error, we cannot say that the decision of the chancellor was against the preponderance of the evidence. Therefore, we affirm the decree of the chancellor.

Affirmed.

We agree.

Harris, C.J., and Byrd and Howard, JJ.


text:
    John A. ROACH et ux v. Roy Roscoe TERRY et al
    78-26
    567 S.W. 2d 286
    Opinion delivered June 26, 1978
    (Division II)

      Otis Linebarier and Stephen Dee Carver, for appellants.

      Johnson & Tarvin, by: William E. Johnson and Robert B. Wellenberger, for appellees.
   Darrell Hickman, Justice.

This action arose when the appellants, John A. Roach and his wife, filed suit to quiet title in them to 70 acres of land in Drew County, Arkansas. The land was originally owned by appellees, Roy Terry and his former wife, Martha. Terry had filed for bankruptcy in Texas in 1974, and a trustee was appointed. Terry gave Roach an option to purchase the land in 1976. Shortly afterward, Terry deeded the land to appellee, Johnny Donaldson. Roach, rather than exercise his option, secured a bankruptcy trustee’s deed. The appellee Commercial Bank and Trust of Monticello was a mortgagee for Terry. After hearing all the testimony and reviewing the evidence, the chancellor concluded that title vested in Johnny Donaldson and his father, Raymond. We find the chancellor’s decision is not against the preponderance of the evidence and affirm the decree.

The appellants allege three errors regarding the chancellor’s findings. It is, therefore, necessary to review in some detail the facts of their case. The crucial issue on review is whether the Donaldsons or Commercial Bank and Trust of Monticello had actual or constructive notice of Terry’s bankruptcy proceedings. Of course, if they had notice, their stature as bona fide purchasers would be overcome, and appellants would take title to the property.

Terry and his wife purchased the land by warranty deed on March 6, 1963. Later that year, Terry and his wife were divorced in Texas. However, the divorce decree specifically gave title to Terry.

On September 12, 1974, Terry began bankruptcy proceedings in federal district court in Texas. E. Warren Goss was appointed as the trustee in bankruptcy of Terry’s property. Mr. Goss eventually negotiated for the sale of the land to appellants.

After having filed for bankruptcy, Terry executed an option to purchase the land in favor of appellants on January 16, 1976. This option was filed on January 19 and remained in force until March 19, 1976. During the pendency of the option, appellants learned of the bankruptcy proceedings from the Union Bank and Trust Company, which held the first lien on the land. The Roachs then began to deal directly with the trustee, Mr. Goss, for the purchase of the land. Goss filed a petition for sale on March 4, 1976, in the Texas federal court. The order granting the sale was entered on April 26, 1976, and the deed was delivered on July 6, 1976. Although the order of sale was filed in Drew County, Arkansas, on April 26, and the trustee’s deed was filed on July 15, nothing was filed during the pendency of the option that would have put the Donaldsons on notice of the Roachs’ claim to the property. Both the order of sale and the trustee’s deed were subject to there being no adverse claim to title, and conditioned on the Roachs assuming any outstanding liens.

While these negotiations were taking place, Terry entered into a purchase agreement for the land with Raymond Donaldson on February 6, 1976. This agreement was filed in Drew County on February 9. The Donaldsons had consulted an attorney before buying the land. The attorney had two checks run on the record for irregularities or discrepancies. He learned of the option and the first lien and from Terry he learned of the divorce proceedings and acquired a copy of the settlement agreement. Since Terry’s wife could not be located, a quitclaim deed was prepared from Terry to Johnny Donaldson. On April 6, 1976, Johnny Donaldson filed the quitclaim deed of record in Drew County. It was filed before Roach filed any deed or claim to the property. See Ark. Stat. Ann. § 16-115 (Repl. 1968). Raymond Donaldson testified he was acting for his son, Johnny, when the agreement was signed. The trial judge held they owned the property together — a finding not challenged on appeal by appellees.

The Commercial Bank and Trust Company is a party to this action by virtue of the fact it had a mortgage from Terry on the property dated March 19, 1976. Its claim in this lawsuit becomes moot if the Donaldsons are held to have superior title.

The question becomes, were the Donaldsons bona fide purchasers for value without notice of the right of the bankruptcy court to dispose of the land. This assumes, of course, that the bankruptcy court alone had authority to dispose of Terry’s land, a fact not seriously refuted by the appellees. The Roachs argue that the appellees had actual notice of the bankruptcy court’s authority because they could have learned of the bankruptcy proceedings by exercising ordinary diligence and, therefore, knew that Terry could not gain good title to the land. Woods v. Wright, 254 Ark. 297, 493 S.W. 2d 129 (1973).

It was undisputed that the Donaldsons had no constructive notice because nothing was filed in Drew County indicating that Terry had been bankrupt. It was undisputed that the trustee did not comply with the bankruptcy act and failed to file any notice in Drew County, Arkansas, regarding a claim against the property. See 11 USCA § 44 (g) (1961).

The Donaldson’s attorney testified that he knew of the option, but at the time the quitclaim deed was prepared it had not been exercised. There was a conversation which took place in the lawyer’s office and Johnny Donaldson conceded that something was said about bankruptcy at the time he acquired the deed. However, Johnny Donaldson testified that Terry told him in the presence of his lawyer that he had been bankrupt but that was all cleared up. This was the extent of admitted knowledge of the bankruptcy court’s authority over the land.

Whether the Donaldsons had exercised due diligence was a question of fact for the chancellor. After an examination of the record, we cannot say that the chancellor’s finding was clearly against the preponderance of the evidence. Woods v. Wright, supra.

One other issue needs to be addressed. The appellants failed to properly abstract the record and were in flagrant violation of Rule 9 of the Supreme Court Rules. The appellees supplied most of the deficiency in the record and asked to be reimbursed for that expense. We allowed the appellants before submission of the case to supplement the record; however, the appellees’ attorney’s request for $1,-554.40 for the cost of extra printing and attorney’s fees has merit and should be granted. We feel it is appropriate in this case to award to the appellees as costs against the appellants the requested amount of money.

Therefore, the judgment of the chancellor is affirmed and the appellees are granted $1,554.40 to be taxed as costs against the appellants.

Affirmed.

We agree.

Harris, C.J., and Byrd and Howard, JJ.

      Martha had given a quitclaim deed to Roach and was dismissed as a party to this action. A property settlement agreement between Roy and Martha Terry provided Roy was to receive the 70 acres. The appellants joined Martha as a party but dismissed her during the action and she is not bound by the decree.

      Terry had worked for Raymond Donaldson and had accepted a $1,000 check from him to hold towards the purchase price of the land in December, 1975.


text:
    Jewell Wayne SHOPTAW et al v. Billy A. PUTERBAUGH et al
    78-31
    567 S.W. 2d 288
    Opinion delivered June 26, 1978
    (Division II)

      Ed Daniel, for appellants.

      Shackleford, Shackleford & Phillips, for appellees.
   Darrell Hickman, Justice.

This is an appeal of a decision in the Dallas County Chancery Court regarding a contract to sell a little over two acres of land.

The appellants had signed an offer and acceptance to buy this land from the appellees. After attempting to use the land for a ready-mix concrete operation, the appellants decided that the tract was unsatisfactory because the ground was too soft. The appellants had paid earnest money of $6,-500.00 to the appellees, according to the agreement, and the chancellor decided that the money would be forfeited as liquidated damages. The appellees cross-complained for $1,-500.00 as actual damages to the tract of land. The trial court dismissed this claim as being without equity.

Both parties appeal the decision of the trial court. We find no error and affirm the decree of the chancellor.

The appellants argue that the trial court refused to permit evidence that the forfeiture of the $6,500.00 was, in fact, a penalty rather than liquidated damages as provided for in the offer and acceptance. The appellants attempted to amend their pleadings during trial to include this allegation, but the trial court, upon objection of the appellees, refused to permit the amendment.

The record indicates that the case had already been continued once on the motion of the appellants, and the request for amendment was not made until the trial was in progress. Different counsel had filed the lawsuit. It is a matter of discretion with the trial court to permit amendment of pleadings at such a time. Ark. Stat. Ann. § 27-1160 (Supp. 1977). We cannot say from the record that the trial court abused its discretion. The appellants argue that Arkansas is a state with liberal pleading rules and, therefore, the refusal of the trial court to permit an amendment was an abuse of discretion.

Our procedural statutes liberally permit amendment of pleadings at certain times under certain circumstances. However, upon timely objection, the trial court does not abuse its discretion by refusing to allow pleadings to be amended. Adcock v. Deaton, 253 Ark. 189, 485 S.W. 2d 203 (1972). That is as it should be because parties are entitled to notice before trial as to what issues will be raised.

In their complaint, appellants alleged that the contract was void because the legal description of the property was insufficient, and because the appellees had not accepted the offer in the prescribed manner. Considering the fact that the appellants had been granted one continuance, that the new issue was raised at trial, and that the appellees properly objected, we cannot say that the trial court abused its discretion by refusing to permit an amendment to include a claim that the provision for liquidated damages was, in fact, a penalty.

In their cross appeal, the appellees ask for a $1,500.00 judgment for actual damages to the tract of land caused by appellants’ heavy vehicles. The vehicles caused ruts on the property which appellees claim they had to repair. However, because the appellees claimed the $6,500.00 as liquidated damages in this action for breach of contract, they are precluded from seeking actual damages. See 22 Am. Jur. 2d Damages § 235 (1965).

Affirmed.

We agree.

Harris, C.J., and Byrd and Howard, JJ.


author: Darrell Hickman, Justice. George Howard, Jr., Justice,

text:
    Larry RUTLEDGE v. STATE of Arkansas
    CR 78-12
    567 S.W. 2d 283
    Opinion delivered June 26, 1978
    (In Banc)

      S. Wooten Epes and Charles P. Allen, for appellant.

      Bill Clinton, Atty. Gen., by: James E. Smedley, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Larry Rutledge was convicted of burglary and theft of property in the Phillips County Circuit Court and sentenced to serve five years in the Arkansas Department of Correction. He raises two issues on appeal: that the trial court erred in denying a motion to suppress his confession and the evidence obtained as a result of that confession; that the trial court erred by not crediting him for time he had spent in jail awaiting trial. We find no merit to either issue, and affirm the conviction and sentence.

The first issue involves a unique fact situation. Rutledge argues he had a lawyer on two unrelated pending felony charges when he confessed to these crimes and his statement was not voluntary because his lawyer was not contacted.

Rutledge had been arrested on the two previous felony charges, but had been released on bond pending the trial. While on bond, he was arrested by the Marvell police for driving an automobile while intoxicated and placed in jail. He escaped from jail, but was arrested shortly afterwards by deputies from the Phillips County Sheriff’s Department.

The deputies questioned Rutledge for a few moments about the escape, and then began questioning him about a burglary of the Marvell Lumber Company. Rutledge had signed a waiver of rights form prior to questioning. He admitted that he had committed the burglary and stolen some guns.

This statement, which had been tape-recorded, was later reduced to writing. However, Rutledge refused to sign the statement on advice of counsel. Rutledge’s attorney, on the two prior felonies, contacted him after this confession and advised him not to sign the statement.

Appellant first claims that the statement was not voluntary because he was threatened and beaten. His testimony on this point was in direct conflict with that of the deputy sheriffs who interrogated him.

Rutledge also argues that because he was represented by counsel on the two other felony charges, the deputy sheriffs were under an obligation to contact his attorney before questioning him about the burglary and theft.

The trial court, after examining its docket, made the statement that at the time Rutledge was questioned he did not have counsel of record. It is not clear from the record before us whether Rutledge had counsel of record on the two unrelated pending felony charges or not. The deputy sheriffs testified that they thought he was represented by a lawyer. Rutledge testified that he did not know whether he had a lawyer. (Apparently he was aware that his lawyer was withdrawing or had withdrawn from the case). In any event, we will assume that he did have counsel of record on the two unrelated felony charges.

Rutledge also argues that once a defendant is represented by counsel he cannot waive his constitutional rights without the knowledge and permission of his attorney. He cites the case of United States v. Howard, 426 F. Supp. 1067 (W.D.N.Y. 1977), as authority for this proposition. In the Howard case the authorities continued to question the suspect after his attorney had told them he represented Howard and did not want the suspect interrogated. We feel the court correctly held that such an interrogation was a violation of the suspect’s constitutional rights. However, in this case the facts are entirely different.

In this case a waiver of rights form was signed by Rutledge before questioning began. He admitted that he signed it. He did not testify on direct examination that he had requested counsel. However, during cross examination he said that he had asked for a lawyer.

The state has the burden of proving that an in-custodial statement is voluntary. Harris v. State, 244 Ark. 314, 425 S.W. 2d 293 (1968). It is the duty of the trial court, after listening to the evidence, to determine whether a statement is voluntary according to law. The trial court in this case found that the statement was voluntary and after examining the totality of the circumstances, we cannot say that finding is clearly against the preponderance of the evidence. Loomis v. State, 261 Ark. 803, 551 S.W. 2d 546 (1977).

We do not find it was per se improper in this case for the authorities to question Rutledge about the burglary of the Marvel Lumber Company even though Rutledge may have had an attorney of record on another set of pending charges against him and that attorney was not notified of the interrogation or Rutledge specifically told he had a right to call that lawyer. Michigan v. Mosley, 423 U.S. 96 (1975). If he is represented by counsel on other charges, it becomes a question of whether the accused knowingly and intelligently entered into a voluntary waiver of his rights to counsel and against self-incrimination. See Rodgers v. State, 261 Ark. 293, 547 S.W. 2d 419 (1977).

The trial court ruled that Rutledge voluntarily made the statement. Since we agree with the trial court, it is unnecessary to determine whether evidence received as a result of Rutledge’s confession should have been suppressed as “fruit of the poisonous tree.”

Rutledge’s request for credit for the time he spent in jail awaiting trial is also without merit. The request was not raised in the trial court although Rutledge had the opportunity to raise it before sentencing. This issue cannot, then, be raised the first time on appeal. See Coleman v. State, 257 Ark. 538, 518 S.W. 2d 487 (1974).

Affirmed.

Holt and Howard, JJ., dissent.

George Howard, Jr., Justice,

dissenting. I am compelled to dissent in this case inasmuch as it is my belief that from a totality of the circumstances involved, the trial court committed reversible error in failing to suppress the alleged confession made by appellant. See: Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974) where we stated that we will make an independent determination of the voluntariness of a confession by reviewing the totality of the circumstances.

The record reflects that appellant was taken into custody by the police on January 31, 1977, at approximately 11:22 p.m. At the time, the appellant had two felony charges pending against him in the Phillips County Circuit Court and was represented by court appointed counsel. The police officers involved were aware that appellant had an attorney.

Appellant was immediately taken to the Phillips County jail where appellant purportedly executed a waiver of rights form, and purportedly confessed to burglary and theft of property. Appellant contends that the oral statement was given, which was later reduced to writing, but not signed by appellant, after he was required by police officers to remove his shirt, threatened to be taken “to the river”, and beaten about the head, face, back and legs.

Although the record is void of appellant’s educational background and his age, it is readily apparent that he is a youth of rather tender age, an indigent, and he was relying on his mother for assistance in making bond for the two felony convictions, which are not the subject matter of this appeal, pending against him at the time he was arrested on January 31, 1977. It is clear that he never made bond for the prior charges and had spent approximately three weeks in jail immediately prior to his arrest on January 31, 1977. Moreover, at the time, he was an escapee from the Marvell jail, having escaped only a short while before he was apprehended by the Phillips County Sheriff Department.

The record also reflects that appellant was evaluated by the Mental Health Center, presumably of Phillips County. The record fails to designate the location of the Mental Health Center. At the request of court appointed counsel, appellant was recommitted to the Mental Health Center for further evaluation, but the record is silent as to the results of the first and the second examination. These reports were not made a part of the record.

Appellant testified that he requested the officers for permission to see an attorney before making any statements, but this request was denied.

The officers involved have testified that they advised appellant of his rights and specifically told him that he had the right to talk with an attorney in order to seek advice before answering any questions and, moreover, it is stated, that appellant was told that his attorney could be present during the questioning. The difficulty that I have in accepting this version, at face value, is the fact that the officers knew from the very beginning that appellant had an attorney who was representing appellant. Thus, to assert that appellant’s attorney was not called because appellant never requested to see an attorney, in view of all of the circumstances just enumerated, creates, indeed, a cloud on the State’s case, in seeking to uphold the confession, is something more than a bare suspicion when it is apparent that the officers could have called appellant’s attorney or afforded appellant an opportunity to call his mother or his attorney.

In Griffith v. Rhay, 282 F. 2d 711, cert. den. 364 U.S. 941, the Court held that where a 19 year old defendant, having little formal education, was interrogated in the hospital while under medication after surgery had been deprived of his constitutional rights regardless of his failure to request the assistance of counsel.

In Scott v. State, 251 Ark. 918, 475 S.W. 2d 699 (1972), we emphasized that in-custody confessions are presumed to have been involuntary and the State has the burden of proof to establish the voluntariness of the confession.

Since appellant had a right to assistance of counsel during his midnight interrogation by Chief Deputy Sheriff Kenneth Winfrey, Deputy Sheriff Lewis Fielder, and Deputy Sheriff Mayo Powell, his failure to request assistance of counsel is significant only if it amounted to a waiver of that right. But a waiver is an intentional relinquishment or abandonment of a known right or privilege. A waiver cannot be effective unless it is intelligently and competently made. Moreover, courts indulge every presumption against the waiver of fundamental constitutional rights. Johnson v. Zerbst, 304 U.S. 458; 58 S. Ct. 1019. Appellant testified that he signed the waiver of rights form, but “I didn’t read it.” The additional fact that the written confession was never signed by the appellant is another significant factor indicating that the State has fallen short of its duty in proving that appellant’s confession was voluntary and that he intelligently and understandingly waived his right to counsel.

I would reverse.

I am authorized to state that Holt, J., joins in this dissent.