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

text:
    Frank Allen CATON and Bernie Hudson HEADLEY v. STATE of Arkasas
    5659
    479 S.W. 2d 537
    Opinion delivered May 1, 1972

      Wiggins ir Christian, for appellants.

      Ray Thornton, Atty. Gen., by: Milton Lueken, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellants were convicted of grand larceny of merchandise of the value of more than $35 from the K Mart Shopping Center in Ft. Smith. Their appeal is based upon allegations that there was error in the admission into evidence of a stenographer’s notebook seized by police from an automobile owned by appellant Headley, in denying their requested instruction on the crime of shoplifting defined by Ark. Stat. Ann. § 41-3939 (Repl. 1964) and in failing to direct a verdict for appellant Headley.

George Alonzo, a security guard at K Mart saw two females taking merchandise from a pants suit rack in the ladies’ wear department and putting it first on another rack and then in their purses. He saw them take in this manner at least four items of merchandise, one of which was yellow. This department was near the refund desk. He watched them and saw that they did not leave the store from this department but went into the patio department. He came downstairs and went to the patio department. While he was doing this he lost sight of the women for about 10 seconds, but said that it would not have been possible for them to have paid for the merchandise in that interval. When he saw them again, they were entering a 1/2-ton pickup truck, which was in motion. He was positive that he saw one of these women behind the steering wheel and at least one other woman whom he could not then recognize. He could not tell how many passengers were in the truck cab. The truck proceeded from one side of the shopping center parking lot to the other, moving in what Alonzo described as an “S”, and coming back and stopping in the lot near the food department at the opposite end of the building from the patio area. Alonzo was walking along the sidewalk, keeping the truck under surveillance. He picked up the chief security guard, identified as Mr. Smith, as he passed the front door. Together they proceeded to a point near that where the truck had been parked and saw a man, later identified as Frank Catón, get out of the truck and carry a brown paper bag, containing at least two colored items, toward the entrance to the food department. Alonzo saw Catón enter the food department, turn to his left, and proceed toward the area where the refund desk was located. Alonzo and Smith approached the truck, and Smith went to the driver’s side and Alonzo to the other side. Alonzo opened the door, identified himself and asked the female occupants if they minded coming inside to discuss the merchandise they might have forgotten to pay for. He said that the two young ladies he had seen in the store, an elderly lady and a child were then in the truck. The woman denied having been in the store, and one of them threatened to call the police. Alonzo saw the top half of a yellow pants suit on the floorboard, along with some brown paper bags. He picked it up and noticed that it bore a two-part K Mart ticket. He said that this indicated that the item had not been paid for, since one portion was to be removed by the store employee to whom payment was made. The driver of the truck started it and left the area. As the truck was leaving Smith wrote down the vehicle license number — Ala ZP16799. Alonzo and Smith then went through the food department to the service desk, from which Smith called the police. Alonzo found Catón at the refund desk, attempting to negotiate with the clerk there for an exchange or refund on a pants suit and a dress. Alonzo asked Catón for a sales receipt for the merchandise and for identification. Catón produced an Alabama driver’s license issued to B. H. Headley. Upon inquiry by Alonzo, Catón stated that he lived on Route 2, Ft. Smith, that his wife was at home, that she was blond and that she was not one of the ladies Alonzo had seen in the pickup truck. Catón kept insisting that he was in a hurry to get to the automotive department where he said his car was being repaired, and asked if he was under arrest. When Alonzo replied in the negative, Catón left through the front door, and when Alonzo called to him and asked if he wanted to take the merchandise, Catón replied that he thought he would sue the store for harassment or false arrest. Alonzo called the auto department and found that one B. H. Headley had a car there, and obtained the make and license number. Alonzo then called the police.

An employee in the K Mart automotive center had sold some tires to Headley, who said that he was from Alabama. Headley was accompanied by Catón at the time of the purchase, and both stood out by the car and waited for the tires to be mounted on Headley’s 1966 Rambler automobile. A little later both left, but returned to ask if the car was ready. At the time, the wheels were being balanced. Catón paid for the tires and certain work being done on the car.

Charles Hill, a Ft. Smith uniformed police patrolman, received two calls pertaining to these incidents, and went to the shopping center where he made contact with the security guard. They went to the automotive department and found Catón standing near the car which had been described. Hill asked if Catón were the owner. Catón said he was not but that the owner was inside. Headley then walked out and admitted that the car was his, but denied having a driver’s license when asked for identification, stating that Catón was doing the driving. He did display a registration certificate bearing his name and the same license number as that given Officer Hill as displayed on the pickup truck. When Hill stated that this was not the registration certificate for the car, Headley stated that it was for his truck, and said that his wife and another lady had gone in it to get something to eat. He said they might return or might go to Alabama, but did not know the route they would travel, where they would spend the night or where he would meet them. Headley then asked Catón to walk around the building and see if the vehicle was there. Catón asked “Which one?” and Headley told him the pickup truck. Catón walked to the corner of the store, looked into the parking lot and reported that the vehicle wasn’t there. During the conversation among Hill, Headley and Catón, Headley told the officer that the party had spent the previous night in Oklahoma City, arrived in Ft. Smith that afternoon and had come to K Mart to buy tires. He said that he had no relatives in Oklahoma City and that the party was just on a tour. He said that they had not been to any place in Ft. Smith except the K Mart center.

O. A. Davis, a police detective, who had been called by Hill, came to the automotive center and placed Headley and Catón under arrest. He searched their vehicle at the time but did not see a stenographic notebook which was handed to him a few minutes later by Officer Jones, whom Davis had directed to drive the Rambler to police headquarters. Davis saw Jones when he found the notebook in the front seat of the car.

Appellants requested an instruction which would have advised the jury of the definition of the crime of shoplifting contained in Ark. Stat. Ann. § 41-3939 and permitted the jury to convict them of that offense which is a misdemeanor on the first or second conviction and a felony on the third conviction. They contend that shoplifting is a lesser offense included within the charge of grand larceny made against them, and that the circuit judge was bound to give this instruction.

The information charges that appellants committed the crime of grand larceny in the following manner:

The said defendants, in the County, District and State aforesaid, on the 26 day of February, 1971, did unlawfully and feloniously steal, take and carry away merchandise of more than $35.00 in value the property of K Mart Shopping Center with the unlawful and felonious intent to convert the same to their own use and deprive the owner thereof.
The pertinent portion of the shoplifting statute reads:
Any person who shall willfully take possession of any goods, wares or merchandise offered for sale by any store or other mercantile establishment with the intention of converting the same to his own use without paying the purchase price thereof, shall be guilty of the offense of shoplifting and shall be punished by a fine of not less than Twenty-Five ($25.00) Dollars and not more than Fifty ($50.00) Dollars and or imprisonment of not less than five [5] days and not more than thirty [30] days, or both for the first offense.

This court has zealously protected the right of an accused to have the jury instructed on lesser offenses included in a greater offense charged. We have consistently held that a trial court commits reversible error when it refuses to give a correct instruction defining a lesser included offense and its punishment when there is testimony on which the defendant might be found guilty of the lesser rather than the greater offense. Walker v. State, 239 Ark. 172, 388 S.W. 2d 13; Bailey v. State, 206 Ark. 121, 173 S.W. 2d 1010; Smith v. State, 150 Ark. 193, 233 S.W. 1081; Allison v. State, 74 Ark. 444, 86 S.W. 409; Davis v. State, 72 Ark. 569, 82 S.W. 167. We have been so careful to see that a jury has an opportunity to pass upon lesser offenses as well as the greater one charged that we have held that it is not prejudicial error to give an instruction which permits the jury to find a defendant guilty of a lower offense than that charged, even when the defendant objects', because the evidence shows him to be guilty of the higher offense or of nothing at all. Kurck v. State, 235 Ark. 688, 362 S.W. 2d 713, cert. denied, 373 U.S. 910, 83 S. Ct. 1299, 10 L. Ed. 2d 412. Still, it is not error for the court to fail to instruct on the lower offense, where the evidence clearly shows that the defendant is either guilty of the greater offense charged or innocent. Gilchrist v. State, 241 Ark. 561, 409 S.W. 2d 329; Sims v. State, 203 Ark. 976, 159 S.W. 2d 753; Clark v. State, 169 Ark. 717, 276 S.W. 849; Rogers v. State, 136 Ark. 161, 206 S.W. 152. And we have held that where the higher offense charged included a lower offense and there was evidence sufficient to present a question of fact as to the defendant’s guilt of either, the trial judge’s instruction over defendant’s objection, that the defendant could not under the testimony be convicted of a lower offense than that charged in the indictment, was reversible error. Bryant v. State, 41 Ark. 359.

The question whether the denial of appellants’ requested instruction was error turns on whether shoplifting prohibited by Ark. Stat. Ann. § 41-3939 is a lesser offense included in the crime charged here and whether there was evidence to support a conviction of the former offense.

Recently we said that to be an included offense, all the elements of the lesser offense must be contained in the greater offense — the greater containing certain elements not contained in the lesser. Gaskin v. State, 244 Ark. 541, 426 S.W. 2d 407. However, this general statement of the principle does not provide the test we have heretofore utilized. An accused may be convicted of a lesser offense than that charged when both belong to the same generic class, the commission of the higher offense may involve the commission of the lower, and the charge of the higher contains all the substantive allegations necessary to let in proof of the lesser. Cameron v. State, 13 Ark. 712. (Assault with intent to kill and simple assault.)

If the evidence proves insufficient to support a jury’s verdict of guilt of the higher offense, the court may sentence the defendant for the lesser offense where the evidence clearly shows the commission of the latter, and this court, in its discretion, may reduce the sentence to that prescribed for the lesser offense. Routt v. State, 61 Ark. 594, 34 S.W. 262; Noble v. State, 75 Ark. 246, 87 S.W. 120; Trotter v. State, 148 Ark. 466, 231 S.W. 177; Blake v. State, 186 Ark. 77, 52 S.W. 2d 644; Roberson v. State, 109 Ark. 420, 160 S.W. 214; Phillips v. State, 190 Ark. 1004, 82 S.W. 2d 836; Sharpensteen v. State, 220 Ark. 839, 250 S.W. 2d 334; Green v. State, 230 Ark. 1007, 328 S.W. 2d 89. Furthermore, we have held that even though the offense of which the accused was found guilty was not a lesser included offense of that charged, there was no error in his conviction if the punishment imposed was one which could have been imposed for a lesser included offense, if the evidence showed, and the jury must necessarily have found, the defendant to have been guilty of that offense in arriving at its verdict. Crank v. State, 165 Ark. 417, 264 S.W. 936.

An additional requirement is that the evidence must show that the lesser offense was committed. Davis v. State, 45 Ark. 464. See also, Jacobs v. State, 100 Ark. 591, 141 S.W. 489. And the jury may convict of the lower, if it entertains a reasonable doubt as to which of the two offenses a defendant is guilty. Haley v. State, 49 Ark. 147, 4 S.W. 746. See also, Powell v. State, 149 Ark. 311, 232 S.W. 429.

Not only is it necessary that the offenses be of the same generic class and that the commission of the higher offense may involve commission of the lower, the charge must also contain all the substantive allegations necessary to let in proof of all the elements of the latter. Childs v. State, 15 Ark. 204; Quinn v. State, 114 Ark. 201, 169 S.W. 791; Sharpensteen v. State, supra. In Childs, the defendant and three others were charged “with force and arms, being assembled together and arrayed in a warlike manner,” making an affray in a public highway by fighting to the terror and disturbance of the people. While it was held that the essential ingredient of the crime was its commission in a public place, making it an aggravated disturbance of the public peace and the charge would permit conviction of all participants of the crime of assault, if the evidence fell short of proving the higher offense, a conviction of assault and battery was reversed because the indictment did not contain the substantive allegations of identity of persons injured necessary to sufficiently inform the defendant of the accusation and identify it sufficiently to protect him from further prosecution for the same offense. So, it was later held, one charged with affray could properly be convicted of assault and battery or assault if the indictment included allegations of an assault and battery. State v. Brewer, 33 Ark. 176.

One charged with assault with intent to kill or assault with intent to rape may not be convicted of assault and battery, unless the indictment or information charges a battery in the allegations of the charge of assault with intent to kill. Sweeden v. State, 19 Ark. 205; Jones v. State, 100 Ark. 195, 139 S.W. 1126; Crank v. State, 165 Ark. 417, 264 S.W. 936. So in Quinn v. State, supra, it was held that conviction of aggravated assault was permissible on an indictment for assault with intent to kill which contained allegations sufficient to embrace all essentials of the lesser offense.

It is clear that, generally speaking, conviction of a lesser included offense is a bar to prosecution of one convicted for the greater. State v. Nichols, 38 Ark. 550, Actually, acquittal or conviction of either would bar prosecution for the other. Haley v. State, 49 Ark. 147, 4 S.W. 746; Fox v. State, 50 Ark. 528, 8 S.W. 836 (conviction of robbery barred prosecution for false imprisonment, where the same assault was alleged as an ingredient of both offenses); State v. Smith, 53 Ark. 24, 13 S.W. 391 (conviction of petit larceny bars robbery prosecution); State v. Lismore, 94 Ark. 211, 126 S.W. 855, 29 L.R.A. (n.s.) 721. It is equally clear that conviction of the greater offense bars prosecution for the lesser. Sullivan v. State, 131 Ark. 107, 198 S.W. 518.

Where the indictment for a greater offense does not contain allegations of all the ingredients of the lesser offense, a conviction of the lesser cannot be sustained, even though the evidence may supply the missing element. Thus, a conviction of carnal abuse was reversed when the indictment for rape contained no allegation indicating that the victim was under the age of puberty (then 12 years). Warner v. State, 54 Ark. 660, 17 S.W. 6. On the other hand, carnal abuse convictions on rape charges have been sustained, where the required allegations as to age were included in the charge. Sutton v. State, 197 Ark. 686, 122 S.W. 2d 617; Head v. State, 175 Ark. 64, 297 S.W. 828; Rose v. State, 122 Ark. 509, 184 S.W. 60; Threet v. State, 110 Ark. 152, 161 S.W. 139; Peters v. State, 103 Ark. 119, 146 S.W. 491; Henson v. State, 76 Ark. 267, 88 S.W. 965.

The state has the option, however, to ignore the higher offense and to charge and seek conviction of the lesser, and it is not error, in that event, for the court to refuse defendant’s request that the jury be instructed that a conviction of the lesser offense could not be had if the evidence showed that the greater offense had been committed, but it would be error for the court to give such an instruction. Cook v. State, 130 Ark. 90, 196 S.W. 922.

•Unless the lower offense is necessarily included within the higher, there is no reason why the prosecuting attorney or the grand jury should not have the option of charging the more serious offense and ignoring the lesser. Courts in other jurisdictions have held that allowing such discretion where a shoplifting statute is involved is not constitutionally objectionable. Black v. Gladden, 237 Or. 631, 393 P. 2d 190 (1964); Yearwood v. State, 455 S.W. 2d 612 (Tenn. Cr. App. 1970).

In this case, there was no reversible error because the allegations in the information do not charge that the merchandise taken was offered for sale by a store or other mercantile establishment. The fact that the state was not required to allege the particular act or acts constituting the offense it charged does not affect the result in this case, because it did set out these acts, as it might have been required to do upon request of appellants. Ark. Stat. Ann. §§ 43-1006, 43-804 (Repl. 1964); Smith v. State, 231 Ark. 235 , 330 S.W. 2d 58; Edens v. State, 235 Ark. 996, 363 S.W. 2d 923. Whenever the information contains all the requirements of the former statute to constitute a sufficient indictment by a grand jury, it is treated as if the state had set out the details of the acts relied upon for a conviction in response to a motion for a bill of particulars. Bosnick v. State, 248 Ark. 846, 454 S.W. 2d 311; Brockelhurst, v. State, 195 Ark. 67, 111 S.W. 2d 527.

The most difficult question presented is appellants’ contention that the stenographic notebook was erroneously admitted into evidence over their objection. They made a motion to suppress this evidence. The written motion to suppress was based upon allegations that the notebook was the product of an unlawful search and seizure. This objection has not been argued on appeal. Appellants do argue that the notebook was inadmissible because the proper foundation was not laid for its introduction, because it contained hearsay and because the entries were too remote in time to be relevant, material or competent. The objections as to hearsay and lack of foundation or connection with appellants were made and overruled when the notebook was offered in evidence at the trial. The circuit judge instructed the jury that this evidence was to be considered by it only for the purpose of showing motive, design, particular criminal intent, habits and practices, or good or bad faith of appellants on the occasion on which the charge was based, if the jury found it to be evidence of similar activities on the part of the defendants. The court instructed the jury, in effect, that it was its duty to determine whether a conspiracy existed, as the state contended, and if it did, that the statements and conduct of each of the participants during the existence of the conspiracy or later, if in furtherance of an attempt to escape or to conceal the crime, could be considered.

The notebook might well be taken as a ledger of shoplifting activities. It lists on the left-hand side, under a heading entitled “Paid out,” various amounts for items such as gas, room, food, car wash, car and rent. On the right-hand side the heading on the first sheet is “Took in.” In this column there are numerous amounts in dollars and cents opposite such designations as “Wool-co,” “Penney’s,” “Globe,” “Sears,” “West,” “Gibson’s,” “Ward,” "K Mark,” “Spartan,” “Boston,” “Hunt’s,” “Levine’s,” “Oertle’s,” “Target,” “Grant’s.” Above each series of figures a date and place are written. The dates range from July 7, 1970, to August 28, apparently of the same year. In some instances the day of the week and hour of the day are also noted. On July 7 the place was Shreveport; July 8, Texarkana, Arkansas and Texas, Hot Springs and Little Rock; August 11, Little Rock; August 12, Ft. Smith; August 13, Muskogee, Oklahoma; August 14 and 15, Oklahoma City, Tulsa and Muskogee; August 20, Anniston, August 21, Greenville and Spartanburg, South Carolina; August 22, Asheville, North Carolina; August 25, Winston Salem, Greensboro and Burlington; August 26, Durham, North Carolina and Petersburg, Virginia; August 27, Richmond and Charlottesville, North Carolina; and August 28, Roanoke, Virginia and Bristol. Opposite the name of one store is the notation “Sp. coat 55.00 To mail check.” Opposite others are such notations as “Run out,” “Run out of town,” “No refund,” “No dice,” “No dice — swap out,” “No dice at all,” “No dice/even exchange,” “No dice no exchange,” “Even swap only,” “No refund no exchange,” “No merchandise,” “Jack and Jean run out of town,” “Watched,” “No-no-no,” “Caught in lot,” and “Kept pants.” The initials F.A. appear alongside a few of these notations. Opposite the name K Mart under the heading “Ft. Smith, Arkansas, Wednesday August 12, 1970,” the figures “10.00” appear. A total of “89.00” is shown for that date. There is no evidence to show in whose handwriting the entries were made, and the only connection of any of the parties disclosed in the exhibit is the first two initials of Caton’s name.

The objection for remoteness cannot be considered, because it was first made in appellant’s motion for new trial, and only inferentially argued here. We may say, however, that the trial court has some discretion in determining whether the conduct relating to other offenses is too remote in time to justify admission, when otherwise admissible. Wilson v. State, 184 Ark. 119, 41 S.W. 2d 764; DuVal v. State, 171 Ark. 68, 283 S.W. 23. We cannot say that there was an abuse of discretion on this ground. The offense was alleged to have occurred within six months of the date of the last entry in the notebook.

Where there is a question whether the crime charged was by accident or mistake, or intentional and with bad motive and guilty knowledge, evidence of similar acts under similar circumstances is admissible, over an objection that a proper foundation was not laid, as tending to show a system, design and guilty knowledge in the case on trial. Howard v. State, 72 Ark. 586, 82 S.W. 196. See Moore v. State, 227 Ark. 544, 299 S.W. 2d 838. This exception to the general rule against admission of evidence of other offenses is applicable to larceny cases as well as others. Johnson v. State, 75 Ark. 427, 88 S.W. 905; Hall v. State, 161 Ark. 453, 257 S.W. 61.

We held that, in a prosecution for embezzlement by an employer of funds deposited by an employee as security, evidence of similar conduct in regard to other deposits was admissible to show a general scheme, plan or course of dealing. Singer v. State, 195 Ark. 345, 112 S.W. 2d 426. We also held that evidence of the defendant’s passing of checks other than the one on which a forgery charge was based was permissible as tending to show the method of procedure employed by the defendant to defraud. Walker v. State, 171 Ark. 375, 284 S.W. 36. Evidence tending to show an operation of a general plan to deal in stolen goods was held admissible in Long v. State, 192 Ark. 1089, 97 S.W. 2d 67. See also, Barnhardt v. State, 169 Ark. 567, 275 S.W. 909. Evidence tending to prove the character of business in which a defendant was engaged at the time he is charged with having committed an offense and his intention to engage in the illegal business with which he was charged has been held admissible in a trial on a charge of manufacturing intoxicating liquors in Casteel v. State, 151 Ark. 69, 235 S.W. 386, and of possessing a still in McGuffin v. State, 156 Ark. 392, 246 S.W. 478. See also, Lynn v. State, 169 Ark. 880, 277 S.W. 19; and see Boyle v. State, 110 Ark. 318, 161 S.W. 1049, where the charge was pandering.

Testimony of this nature concerning statements of the accused made about a year prior to the offense charged has been held admissible. Brown v. State, 161 Ark. 253, 255 S.W. 878. On the other hand, evidence of such conduct several years before the occurrence on which the charge was based has been held inadmissible. DuVal v. State, 171 Ark. 68, 283 S.W. 23. On a charge of forgery and uttering a forged instrument evidence pertaining to checks bearing dates ranging over a period of more than two years held admissible to show guilty knowledge and criminal intent, because it tended to show a plan or system of operation. Wilson v. State, 184 Ark. 119, 41 S.W. 2d 764. In a case where a male defendant was charged with fondling a male child, evidence of an occurrence which took place four or five years earlier was held not too remote to be admissible as evidence of the defendant’s proclivity to indulge in unnatural sex acts. Ward v. State, 236 Ark. 878, 370 S.W. 2d 425. The trial court’s latitude of discretion in the matter of remoteness is illustrated in these cases.

Evidence of such similar acts by a defendant and his co-conspirators is admissible. Johnson v. State, 75 Ark. 427, 88 S.W. 905. Evidence of similar acts connected with the specific offense on trial as part of a general and composite scheme, or so related as to show a common motive or intent throughout has been held admissible to show that the crime charged was within the scope of the purpose for which it is alleged that the defendant had conspired with another. State v. Dulaney, 87 Ark. 17, 112 S.W. 158.

Since the court admonished the jury that the exhibit could be considered only if found by it to be evidence of activities of appellants similar to that charged in the information, a critical question is whether there was sufficient authentication of the notebook to permit introduction under any circumstances. We do not feel that the finding of this notebook, with initials identical to Catón’s first two in a few places, in the automobile owned by Headley and driven by Catón to the shopping center is sufficient circumstantial evidence to justify submitting to the jury the question of authenticity of the writing and its connection with the defendants, as was done in Monk v. State, 105 Ark. 12, 150 S.W. 133.

Admissibility of this incriminating bit of evidence cannot be sustained upon the theory that the entries were made by an accomplice or coconspirator of appellants. We think that there was ample evidence on which the jury might have based a finding that Headley, his wife, Catón and at least one other female had conspired to engage in the shoplifting at the K Mart in Ft. Smith. The notebook was found in a vehicle owned by Headley and driven to the site by Catón, and the alleged participants were all traveling together, although in two vehicles, both owned by Headley. The inference that Catón, with Headley’s driver’s license in his possession, left Headley to meet the female shoplifters and to convert the stolen merchandise into cash was reasonable. It would not be unreasonable to infer that Headley’s vehicle was to be used to get the women away from the scene of the crime with his knowledge.

A conspiracy is a combination between two or more persons to do something unlawful, and it may be established by circumstantial evidence as well as by direct evidence. McGlosson v. State, 171 Ark. 1188, 286 S.W. 931; Griffin v. State, 248 Ark. 1223, 455 S.W. 2d 882. Where the testimony shows a concert of action between persons alleged to have jointly committed a crime or the person charged and another, it has been held sufficient to establish the necessary common unlawful object and intent. Griffin v. State, supra. When the combination of persons to do an unlawful act is shown, each of them is liable for the act of one proceeding according to the common plan, if it terminates in a criminal result. Griffin v. State, supra. If Headley and Catón were participants in the conspiracy, evidence of any statement made by, or conduct of, any of the participants, prior to the completion of the fraudulent scheme, was admissible against them. Parker v. State, 98 Ark. 575, 137 S.W. 253; Housley v. State, 143 Ark. 425, 220 S.W. 460. The evidence was sufficient to make both Headley and Catón accessories, if not principals in fact as well as in law. This exhibit would be competent against an accessory if it was competent against a principal. State v. Dulaney, 87 Ark. 17, 112 S.W. 158.

The first fallacy in this theory of admissibility is that this notebook, a "speaking exhibit,” clearly violates the hearsay rule in the absence of evidence that any participant in the crime charged, or in a conspiracy to commit it, made the entries. Thus, the notebook would be inadmissible under this theory because there is no evidence to connect the content of the notebook with the particular crime charged, i.e., larceny from the K Mart in Ft. Smith, or a conspiracy to commit that crime. Except for the notebook itself, there is absolutely no allegation or evidence of a conspiracy among the parties to engage in shoplifting over a wide area for a long period of time. We have said that there must first be prima facie evidence of the existence of a conspiracy before acts and declarations of the conspirators during the course thereof are admissible in evidence against their coconspirator. Cantrell v. State, 117 Ark. 233, 174 S.W. 521. See also, Burns v. State, 155 Ark. 1, 243 S.W. 963; Rowland v. State, 45 Ark. 132; Casey v. State, 37 Ark. 67 (overruled on another point, Polk v. State, 45 Ark. 165); Underhill’s Criminal Evidence § 865 (Fifth Edition, 1957); Wharton’s Criminal Evidence § 440 (Twelfth Edition, 1955). Another foundation stone missing is evidence that the entries in the notebook were made during the existence of the only conspiracy of which there is independent evidence. See Lesieurs v. State, 170 Ark. 560, 280 S.W. 9; Wharton, § 426; Underhill, § 862.

It has been suggested that we should hold the notebook admissible as an instrumentality of the crime, that is, as if it were a guidebook of likely or unlikely shoplifting victims. Of course, this is not the theory on which the notebook was offered or received in evidence, and the admonitions and instructions given the jury relating to the circumstances under, and purposes for, which it might be considered would be inconsistent with that theory. Cases which seem to indicate that record books, notebooks and other writings may be admissible as an instrumentality of the crime may be distinguished readily, usually upon the ground that the writings clearly show a connection with the crime charged or clear indication of a defendant’s authorship. See, e.g., United States v. Cole, 365 F. 2d 57 (7th Cir. 1966), cert. denied, 385 U.S. 1027, 87 S. Ct. 741, 17 L. Ed. 2d 674, reh. denied, 386 U.S. 951, 17 L. Ed. 2d 879, 87 S. Ct. 971 (1967); State v. Watson, 386 S.W. 2d 24 (Mo. 1964), dismissed, 381 U.S. 275, 85 S. Ct. 1458, 14 L. Ed. 2d 431 (1965); Widgeon v. Commonwealth, 142 Va. 658, 128 S.E. 459 (1925); Commonwealth v. Bassi, 284 Pa. 81, 130 A. 311 (1925); Commonwealth v. Pezzi, 284 Pa. 85, 130 A. 312 (1925). No such connection appears in this notebook.

What we have heretofore said demonstrates that there was no error in denial of Headley’s motion for a directed verdict. However, because of error in admitting the notebook in evidence, we must reverse the judgment.

Byrd, J., dissents.

Conley Byrd, Justice,

dissenting. The record here shows that, at the time the notebook was introduced, (1) the three women and two men were traveling together; (2) they had spent the previous night in Oklahoma City; (3) the parties had no relatives in Oklahoma City; (4) the officers had been told that the parties were just on a tour; and (5) that some or all of the parties were then engaged in a larceny.

When the above evidence is considered along with the fact that the parties had Alabama license tags on their vehicles, and stated that the women may have already left for Alabama, there is evidence from which one could conclude that some or all of the parties made the entries in the notebook. After all the notebook was found in a car driven by Catón, owned by Headley and in which the defendants admittedly had been touring, as distinguished from a vacation, for some time. Added to the above facts is the further fact that Caton’s initials appear alongside the notations.

We have upheld instructions to the effect that a fact in dispute can be established by circumstantial evidence when its existence can reasonably be inferred from other facts proved in the case but that to do so the facts and circumstances must be consistent with each other and with the guilt of the defendant and inconsistent with any other reasonable theory. The facts and circumstances surrounding the possession of the notebook by the defendants lead only to the reasonable inference that the notebook was kept and the entries were made by one or more of the parties involved in the tour at the time of the theft from the K-Mart Shopping Center. To suppose that some one other than the parties involved in the K-Mart theft made the notebook is to me nothing more nor less than indulging in “imaginary doubts.” Other courts, State v. Hightower, 221 S.C. 91, 69 S.E. 2d 363 (1952), have permitted authentication of writings by circumstantial evidence. Since authentication is only an issue of fact, I cannot understand why the evidence here is not sufficient.

For the reasons stated, I respectfully dissent.

      This case or the rule stated by it was followed in Strawn v. State, 14 Ark. 549, where the charge was maiming and conviction was of fighting by mutual agreement (resulting in maiming) which constituted aggravated affray under a statute, and in Guest v. State, 19 Ark. 405, where the charge was maiming and the accused was found guilty of an aggravated assault and battery; Monk v. State, 105 Ark. 12, 150 S.W. 133, where defendant was convicted of burglary and petit larceny on a charge of burglary and grand larceny. Hight v. State, 172 Ark. 240, 288 S.W. 384, where the charge was robbery and the conviction was for assault with intent to rob; Harrison v. State, 222 Ark. 773, 262 S.W. 2d 907, where conviction was assault with intent to rape and the charge was rape.

      We do not approve the holding in these cases that there cannot be a conviction of shoplifting on trial of a charge of grand larceny. It is not necessary for us to reach that question in this case. Under our tests, it appears that such a conviction might be possible if the charge alleges all the elements of shoplifting and the evidence would support such a conviction.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    John LIVELY v. STATE of Arkansas
    5697
    479 S.W. 2d 553
    Opinion delivered May 1, 1972

      Harold L. Hall, for appellant.

      Ray Thornton, Atty. Gen., by: Milton Lueken, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant contends that the evidence was insufficient to sustain his conviction of keeping a gambling house. He also asserts that evidence obtained by search of premises known as “Hav-a-Stein” should have been suppressed and the warrant quashed. We will consider these contentions in reverse of the order in which they are stated.

Appellant argues that the only evidence before the magistrate issuing the warrant is the facts stated in the affidavit, and that these facts do not state probable cause for the issuance of the search warrant for betting slips, race forms, scratch sheets, envelopes containing money, cash register, cash drawer, money used in betting operation and other gaming equipment and gaming paraphernalia in the Hav-a-Stein Tavern occupied by “John,” 5’8”, 150 pounds, approximately 35 years old, and “Carroll,” a white male, 6’1”, 180 pounds, dark hair, approximately 40 years of age, at 4607 Asher Avenue, Little Rock, Pulaski County, Arkansas. The affidavit read:

We, R. L. Miller and R. C. Haggard, do solemnly swear that there are reasonable grounds to believe, and upon probable cause we do believe that gaming is being carried on and gaming equipment is concealed in the Hav-a-Stein Tavern, located at 4607 Asher Avenue, Little Rock, Pulaski County, Arkansas, and that gaming equipment and paraphernalia, to-wit: betting slips, race forms, scratch sheets, envelopes containing money, cash register, and cash drawer, are concealed on the premises occupied by the Hav-aStein Tavern, 4607 Asher Avenue, Little Rock, Pulaski County, Arkansas, in the State and County aforesaid and pray a warrant issue from said Court directing the search of said Hav-a-Stein Tavern and the seizure of the gaming equipment, gaming paraphernalia, or personal property including money, used in connection with said gaming.
Facts constituting probable cause:
1. The activities and observations set forth in the following paragraph took place on the respective dates as shown at the Hav-a-Stein Tavern, 5607 Asher Avenue, Little Rock, Pulaski County, Arkansas:
On 3 occasions, to-wit: March 15, 17 and 17, 1971, affiants placed bets on horses racing at Oaklawn Park, Hot Springs, Arkansas, observed betting slips being filled out and placed between the cash register and the wall in said establishment known as the Hav-a-Stein Tavern, and observed racing forms and other gaming paraphernalia used in the placing of said bets at said establishment.
On March 16, 1971, affiants received a pay off of $4.20 on a $2.00 bet placed on March 15, 1971, on the number 6 horse, “She-Calachan,” running in the 8th race at Oaklawn Park, Hot Springs, Arkansas.
All the bets placed were with a white male named “JOHN,” 5’8”, 150 lbs, approximately 35 years old, and bets were collected from a bartender known to affiants as “CARROLL” last name unknown, a white male, 6’1”, 180 lbs, dark hair, approximately 40 years of age.

Appellant’s contention is that there was nothing to show that gambling was occurring on March 20, 1971, the date of the affidavit and of the issuance of the warrant, or at any time after March 17, 1971. It was not essential to the validity of the search warrant that such a showing be made. It is only required that the affidavit to show probable cause relate facts so near in point of time that a belief on the part of the issuing magistrate that the conditions described in the affidavit still prevail is not unreasonable. Waggener v. McCanless, 183 Tenn. 258, 191 S.W. 2d 551, 162 A.L.R. 1402 (1946); Neely v. Commonwealth, 269 Ky. 451, 107 S.W. 2d 305 (1937). It would be impossible to state any hard and fast rule to govern the element of remoteness in the issuance of a search warrant. Too much depends upon the circumstances of the particular case and the context of the evidence of probable cause submitted to the magistrate in which the time of the acts made the basis of the application is stated. It appears that the weight of authority supports the general rule above stated and that lapses as long as three weeks have been held not to invalidate a search warrant. See Annot., 162 A.L.R. 1406. We cannot say that the municipal judge’s finding that probable cause existed for issuance of the warrant on March 20 was unreasonable.

It would serve no useful purpose to narrate the evidence in full detail in this case. We find it sufficient to sustain the jury verdict. Viewed in the light most favorable to the verdict, it shows:

Officers R. C. Haggard and Ray C. Miller, doing undercover work for the Little Rock Police Department, went, on March 15, to the Hav-a-Stein with one Mike Bale, who introduced them to Lively. They gave money to Bale, who in turn gave it to Lively, to bet on a horse. Lively recorded the name and went across the street to use a pay telephone. Upon return, Lively reported that the bets were placed and put the notation and the money in a cigar box next to the cash register. When the undercover agents returned on March 16 to collect on their bets, the bartender, Carroll Lester, informed them that Bale had collected the money. Another bet was placed by Miller, and the officers observed Lively go into a telephone booth, after taking the money for the wager and recording the number of the horse in a race at Hot Springs. They saw Lively place a call and then return arid state that the bet was placed. Lively then put a notation of the wager in the dgar box by the cash register. On March 17, Carroll Lester reached into this cigar box for $4.80 which he paid Miller. On March 18, Miller placed two bets with Lively, who recorded them on paper, put the money in his pocket, and went to the pay phone, returned and advised that the “bets were in.” Whenever the officers were in the tavern, three other persons there shared racing forms and scratch sheets with them and exchanged information about horses.

Lively claimed that he did not place the bets by telephone, but that he had taken the money and given it to a friend named Joe Schogudy, who had a business location across the street, to take to the track to be wagered there. Schogudy did not testify. Lively testified that he did not profit from the bets, and that, while he had taken money from people and placed their bets at the track, he had never engaged in any gambling activity in his place of business. He points out that there were two telephones in his place so that it was unnecessary for him to cross the street to use a pay phone in placing the bets. He also argues that there was no evidence that anyone other than the police undercover agents placed bets and that no other witness testified that gambling activity was being conducted at the Hav-a-Stein.

The credibility of the witnesses and the weight to be given the evidence were matters to be determined by the jury. We find substantial evidence to support the verdict.

The judgment is affirmed.

      There was testimony that this date was a typographical error and that it should have been "18." The result we reach in this case would not be different if this date did not appear in the affidavit at all. (footnote ours.)


author: J. Fred Jones Justice. Carleton Harris, Chief Justice,

text:
    Lindy BOLLEN v. E. L. McCARTY
    5-5865
    479 S.W. 2d 568
    Opinion delivered May 1, 1972

      Coleman, Gantt, Ramsay <!? Cox, for appellant.

      Frierson, Walker, Snellgrove & Laser, for appellee.

   J. Fred Jones Justice.

Lindy Bollen and E. L. McCarty entered into an agreement under which Bollen agreed to buy and McCarty agreed to sell real property in Jefferson County, Arkansas, for the sum of $38,500; $5,000 of which was paid in cash and the balance of $33,500 was to be paid at closing. The contract contained a special condition in words as follows:

“Buyer shall have the right to withdraw this offer and receive a refund of earnest money herewith tendered on or before October 6, 1969.”

Bollen attempted to withdraw his offer and obtain a refund of the earnest money but McCarty refused to return the earnest money. Bollen filed the present action against E. L. McCarty in the Craighead County Chancery Court alleging that on October 6, 1969, he withdrew his offer and demanded return of the amount he had paid. He prayed for specific performance of that provision of the contract and for the return of the earnest money he had paid.

McCarty denied that Bollen had exercised his option to withdraw his offer and receive a refund of his earnest money on or before October 6, 1969, and denied that the withdrawal of the offer was accomplished within the time provided for in the contract. He prayed a dismissal of the complaint and for recovery of his cost expended.

The question before the chancellor was one of fact as to whether Bollen delivered a notice of withdrawal to McCarty on October 6, 1969, as contended by him, or whether he delivered said notice on October 7, 1969, as contended by McCarty. The chancellor found that the option to withdraw was not exercised until October 7 as contended by McCarty and Bollen’s complaint was dismissed.

On his appeal to this court Bollen relies on the following points for reversal:

“The finding and decree were contrary to the preponderance of the evidence.
In spite of trial court’s finding appellant was entitled to judgment.”

While it is true that we try chancery cases de novo on appeal, we do not disturb the chancellor’s finding on questions of fact unless such findings are clearly against the preponderance of the evidence. Munn v. Rateliff, 247 Ark. 609, 446 S.W. 2d 664.

The evidence in the record indicates that the appellant Bollen was in the process of obtaining a Datsun automobile franchise and in order for him to do so it was necessary for him to obtain a building site in connection with such franchise in the Pine Bluff area. He employed Hubert E. Slayten, Jr. to select a site and Slayten was instructed to purchase the site from McCarty contingent upon Dr. Bollen obtaining the franchise. Bollen had no direct contacts with McCarty as others were interested in obtaining the Datsun franchise, and Dr. Bollen did not reveal the purpose he had in purchasing the property.

Mr. Slayten testified that around Saturday, October 4, 1969, Dr. Bollen called him and advised that it appeared that the franchise was not going to be granted and that he was advised by Dr. Bollen to submit to Mr. McCarty a withdrawal of his offer on Monday, October 6, the final day for withdrawal under the contract. He testified that when Dr. Bollen called him on October 4, he inquired of Dr. Bollen whether he wanted to use a local attorney in the matter, and that Bollen replied he would leave that to him (Slayten) as his agent. Slayten testified that he contacted an attorney and was advised as to how to proceed in the matter and that on Monday morning, October 6, he obtained from the attorney a withdrawal notice in duplicate. He testified that on October 6 he mailed one of the copies to Mr. McCarty by certified mail,.and that on the same date he handed the other copy to McCarty in person. A letter of withdrawal dated October 6, 1969, was offered in evidence together with receipt for certified mail bearing the date of October 6, 1969. The return receipt shows that the item was delivered on “10-7-69” and signed for by Mrs. E. L. McCarty.

Mr. Slayten testified that he tried to call Mr. McCarty several times by telephone on October 6 and finally contacted him about 2:50 in the afternoon on that date. He testified that Mr. McCarty came by in his automobile and he delivered the letter of withdrawal to Mr. McCarty in person and advised him that he was sorry that they were forced to withdraw the offer. He testified that Mr. McCarty replied that he was not quite ready to refund the earnest money as he considered that he had sold the property. He testified that he did recall Mr. McCarty saying something to the effect that he was a day late with the notice, but that he pointed out to Mr. McCarty that the contract called for withdrawal on or before October 6.

Mr. McCarty testified that he only dealt with Mr. Slay-ten in the transaction and that Mr. Slayten was acting for an undisclosed principal who was offering to purchase his property for an undisclosed purpose. He testified that he understood he had sold the property under the contract and was simply receiving $>5,000 as earnest money on the purchase and would receive the balance when the abstract of title was examined and approved. He testified that his tenant, who was conducting a used car business and paying $240 a month rental on the property, moved because of the sale. He denied that Mr. Slayten delivered the written notice of withdrawal to him on October 6 but testified that the second notice was actually delivered on October 7 to one of his employees, T. H. Cockrell; that Mr. Slayten told him he had left the notice in his office and that this occurred on October 7, the same day the registered letter was received by hiswife.

Mr. T. H. Cockrell testified that he was working as a salesman for a Mr. Ryburn who had a used car lot on property owned by Mr. McCarty in Pine Bluff, and that he remembers Mr. Slayten handing to him a letter to be delivered to Mr. McCarty. He said he does not remember exactly which day of the week the letter was handed him by Mr. Slayten, but that he did deliver the letter to Mr. McCarty in the afternoon on the same day; that Mr. McCarty opened the letter in his presence, and remarked that he had received one just like it in the mail that morning.

As we have said so many times, the chancellor heard and saw the witnesses as they testified and is in a much better position than we are to evaluate the factual evidence from conflicting testimony. We are unable to say that the chancellor’s finding that the letter of withdrawal was delivered to Mr. McCarty on October 7 as he and his witness testified, rather than on October 6 as testified by the agent of Dr. Bollen, is against the preponderance of the evidence.

The appellant cites several court decisions and annotations in support of the well-known proposition that equity abhors forfeitures, but here we have an executed land sale contract with the down payment of $5,000 as earnest money. A clause in the contract allowed the purchaser to withdraw from binding effect of his contract on or before October 6, 1969, in which event his earnest money or down payment would be refunded to him. The question then is whether there is room for the exercise of equity in the face of the trial court’s finding that the revocation or withdrawal did not occur on or before the specified date in the contract.

Both parties cite our decision in Motion Picture Advertising Service Co. v. Cannon, 186 Ark. 1107, 57 S.W. 2d 1043 (1933), as being close in point on the question involved, and the appellant attempts to distinguish that case from the case at bar. Our statement in that case concerning a cancellation clause in a contract is as follows:

“The clause above quoted relating to cancellation and when notice should be given is not ambiguous. It clearly provides that he shall have the right of cancellation after thirteen weeks’ actual service had been rendered, but that he must give notice of his intention to cancel ‘on or before July 30, 1929.’ The right to cancel depends on the notice required. The parties might have agreed on any other date, but they saw proper to agree that notice should be given on or before July 30. It made no difference whether the thirteen weeks’ actual service was then completed or not.”

The Texas case of Ducc Realty Co., Inc. v. A. V. Cox, 356 S.W. 2d 807 (1962) concerned a purchaser’s attempt to cancel a contract for purchase of realty and for refund of earnest money deposit. The vendor by counter action sought judgment for deposit. The contract contained a clause for the making of soil tests to the satisfaction of the purchaser. By this clause the purchaser was to notify the vendor within 15 days of receipt of the tests as to their acceptability and if not acceptable, then the purchaser could rescind the contract and would be entitled to the return of the earnest money. The trial court found that this notice was not given within the 15 day period. The Texas Court of Appeals stated:

“The provision for notice, construed nost favorably to the appellant, constituted an option granted to or reserved by the purchaser to elect to disaffirm, cancel, revoke or terminate the contract, even if the clause reciting the notice provision shall be deemed of the essence be disregarded. ‘An option gives to the holder the choice and power of electing between alternatives. In option contracts time is nearly always of the essence. This would be so on either theory of an option. If we reagrd it as an offer, it is open for a time limited, and no offer can be accepted after its lapse. If we regard it as a conditional contract, it contains the express condition that notice shall be given at a specified time. Such an express condition should be enforced according to its terms.’ Corbin, Readings on Contracts, Assoc. Amer. Law Schools, p. 244.
If an option contract requires notice of intention as to optionee’s exercise of the option, ‘failure to give such notice on time is fatal. Time is of the essence of an option.’ And ‘Time is likewise of the essence of options to terminate or cancel an existing contract.’ 3 Williston, Contracts (Rev. Ed.) Sec. 853, pp. 2391, 2393; and see Corbin, Contracts (1952) secs. 713-724; Simpson Contracts (1954) p. 452; 72 A.L.R. 2d 1127; I Williston, Contracts (3rd Ed. 1957) Secs. 61 A, 61B, 63; 10-A Tex. Jur. pps 71, 464, 515, 13 Tex. Jur. 2d Sec. 346, p. 621.”

In Arroyo v. Patayne Estates, Inc., 266 N.Y.S. 2d 565 (1966), a headnote to a per curiam opinion properly sets out the substance and holding as follows:

“Where contract for purchase of dwelling house gave purchasers option of cancellation by notice sent to defendant’s attorneys by certified mail postmarked not later than August 31, but such notice was postmarked September 4, there was no indication that post office contributed to delay or that notice though dated August 30 was mailed before September 4 and there were no other grounds on which to base equitable relief, cancellation was ineffective and defaulting purchaser was barred from reclaiming his downpayment.”

The decree is affirmed.

Harris, C. J., and Byrd, J., dissent.

Carleton Harris, Chief Justice,

dissenting. I do not agree that the preponderance of the testimony was on the side of the appellee; to the contrary, because of the inconsistencies and conflicts in the testimony of appellee McCarty and his witness, T. H. Cockrell, I consider a preponderance of the creditable evidence to preponderate in favor of appellant. The question is whether the notice was delivered to McCarty on October 6 or October 7, 1969. Mr. McCarty was very positive that Mr. Slaten talked to him on October 7 at the car lot on Main Street — not the 6th — and he testified that he told Slaten when apprised that his principal did not want to buy the lot “Mr. Slaten, how can you do that? I’ve lost my renter and you agreed to buy the lot. How can you do that? On top of that your time has expired. Your 30 days was up Saturday”. He could not remember what he did on the 6th, “I don’t know. If I could recall it, I would tell you but I simply do not have that much recall.” McCarty also said that Slaten did not ask for an extension on the 7 th, which would seem a logical thing for Slaten to do, if indeed the notice was being delivered a day late. Appellee testified that the delivery of the no dee was made in the midafternoon, “I met Mr. Slaten coming out [from appellee’s office] and he said, ‘I left a paper on your desk.’ ”. He stated that he talked with Slaten for about five minutes. Subsequently however, he testified that when he went over to the car lot, Slaten was driving off. Also, during his testimony on cross-examination appellee stated he didn’t remember testifying that he told Slaten “Anyway your 30 days was up Saturday”, though the statement had been made on direct examination. Finally, McCarty testified that the notice was delivered to his Main Street lot, a fact subsequently disputed by the testimony of his employee, T. H. Cockrell.

Cockrell testified that, at the time in question (6th and 7th of October), he worked on a car lot located on Highway 65, which was also owned by McCarty. He said that the letter for McCarty (giving notice) was brought to him at this location in the morning, and he gave it to McCarty that afternoon. Cockrell testified that the letter was not delivered to the Main Street lot but rather at the car lot on the highway; in fact, he stated that McCarty did not even operate a lot on Main Street at that time. Cockrell reiterated over and over that the notice was not delivered to the Main Street address. As stated, these inconsistencies and contradictions, in my view, clearly destroy the value of the testimony offered on behalf of appellee for they establish that the memories of McCarty and Cockrell, to say the least, cannot be depended upon.

Despite the provision in the contract giving appellant the right to withdraw his offer and have his $5,000 refunded on October 6, McCarty insisted that this was not actually the agreement; that the purpose of the October 6 date was simply to permit appellant’s attorney to examine the abstract. He stoutly contended that the agreement was for an absolute sale, this despite the fact that he has been in business for 40 years, and was aware that the provision was contained in the agreement. If he held such a belief, it would logically appear that appellee would have instituted suit against appellant for specific performance; instead of that, he was satisfied to take the $5,000. Of course, the fact that equity abhors a forfeiture is so well recognized as to really need no citation of authority. The general view is set out in 50 C.J.S. Equity § 57 p. 895:

“Both because penalties and forfeitures are usually harsh and oppressive, and because ordinarily they can be enforced at law, courts of equity generally refuse to aid in their enforcement, even though the case may be one in which no equitable relief would be given to the defaulting party against the forfeiture. This has been at times declared to be an absolute and inflexible rule without any exceptions.
Other cases have stated the rule with some qualification, indicating a strong leaning against, and a reluctance to enforce, a forfeiture but still not denying that it might be done in extreme cases where the remedy at law was plainly inadequate, or where the right is so clear as to permit no denial, although, as has been pointed out in some instances, and as appears on examination of the circumstances involved, frequently authorities indicating that a court of equity recognizes the right to enforce a forfeiture do not mean that the enforcement will be affirmatively decreed in such a court, but merely that the court will not lend its aid in such cases to relieve against enforcement.”

Of course, we have numerous cases to the same effect.

To summarize, I think, for the reasons stated, that the weight of the evidence is on the side of appellant. Be that as it may, we certainly have a hotly contested issue — and, even under appellee’s theory, appellant could not have been more than a day late. The right to a forfeiture is certainly not, in this case, “So clear as to permit no denial”, and I would accordingly reverse the decree and find for appellant.

Byrd, J., joins in this dissent.

      It is not clear why the witness said the time was up on Saturday, which was October 4, since neither side presently contends other than that the date was the 6th or the 7th.


author: J. Fred Jones, Justice.

text:
    Joe NELSON v. STATE of Arkansas
    5704
    479 S.W. 2d 556
    Opinion delivered May 1, 1972

      H. Allen Dishongh, for appellant.

      Ray Thornton, Atty. Gen., by: John D. Bridgeforth, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

Joe Nathan Nelson appeals from a denial of his petition for post-conviction relief in the Pulaski County Circuit Court. He relies on the following point for reversal:

“The circuit court erred in failing to grant the relief prayed for by the petitioner when the evidence presented at the Rule 1 hearing demonstrated that the petitioner had made an involuntary guilty plea to the charges of grand larceny and escape.”

Nelson was charged with grand larceny and escape in the Pulaski County Circuit Court. He entered pleas of guilty and was sentenced to ten years on each count, the sentences to run concurrently. On his petition for post-conviction relief under Criminal Procedure Rule No. 1, Nelson alleged that he was denied due process of law under the Sixth Amendment of the United States Constitution, and that he was represented by ineffective counsel in that his court appointed attorney failed to bring to the court’s attention evidence of threats and other forms of coercion which induced the petitioner to enter his pleas of guilty.

Nelson testified at his Rule 1 hearing that Officer Crump, who interrogated him in the jail following his arrest, told him that regardless of whether he committed the crime with which he was charged, he would be sent back to prison upon revocation of a suspension of sentence under a previous conviction. He testified that because of this threat he escaped from the Pulaski County jail when some other inmates sawed the bars from a cell. He testified that when he was apprehended following his escape, he was advised by Captain Allen of the police department that he had two charges pending against him, escape and grand larceny. He said Captain Allen told him that if he would cooperate he, Captain Allen, would try to help him in court, but if he refused to cooperate that he, Captain Allen, had ways of making him cooperate. He testified that another prisoner, Kenneth Odom, told him that it was the jailer’s practice to place black men in the cells with white men in order to force cooperation. He said that because of what prisoner Odom told him he decided to plead guilty. He said that he told Captain Allen he would cooperate if Allen would assist him in obtaining a lighter sentence. He said that immediately after his discussion with Allen he was taken before the circuit judge where he entered his pleas of guilty. He said that attorney McArthur was appointed to represent him at trial but that he did not tell his attorney why he wanted to plead guilty. He said that he did tell his attorney he had been promised a five year sentence by Captain Allen.

At the original preliminary hearing in municipal court, a Mr. John Reader testified that on the day of the alleged crime he was traveling west on 15th Street in his automobile when he saw three black men running from an alley followed by Mr. Snyder who was shouting "police.” He said one of the men had on a blue shirt, one a yellow shirt and one wore a white shirt. He said that the three men ran in front of his car and that he followed them in his automobile a short distance and when they turned the corner of the block, he shouted at them to stop and that Joe Nelson stopped and came back to his car where he placed him under citizen’s arrest. He said Nelson was the one wearing a yellow shirt and that the three men had traveled about 300 feet when he stopped Joe Nelson.

Everett Snyder testified that he was bookkeeper for the David White Electronic Company and shortly after noon on the day in question, he had started to his automobile parked in the alley behind the business where he worked and was carrying the day’s receipts for deposit in the bank. He said that when he entered the alley, three men came up to him and one of them asked about the location of a cafe and then he grabbed the bag containing the intended bank deposits and that all three ran away. He said he ran after them but they got away from him.

Mr. William C. McArthur, Nelson’s court appointed attorney, testified at the Rule 1 hearing that he represented Nelson’s co-defendant, Richard Joyner, as well as Nelson under court appointment; that Nelson entered a plea of guilty and that Joyner pleaded not guilty. He said the prosecuting witness, Snyder, was unable to positively identify either Nelson or Joyner as the one who actually took his money. He testified that John Radar, who made the citizen’s arrest, failed to appear as a witness at Joyner’s trial and Joyner was acquitted. He said that he remembers that Nelson specifically told him that he wanted to plead guilty to the charges and that he does not recall Nelson telling him why he wanted to plead guilty. He said that he does not recall any specific incident relating to Nelson’s pleas of guilty, but the it has always been his practice with clients desiring to enter pleas of guilty, to discuss the client’s desires with the client and point out to him the probable effect of entering the pleas. He said he believes he did the same with Joe Nelson. He testified that he does not recall Nelson advising him of any threats or any form of coercion that would induce him to plead guilty and had any such matter been called to his attention, he would have refused to participate in the pleas of guilty. He said that he does not recall Nelson saying anything to him about any promises of a light sentence made by Captain Allen. He said that if anything like that had been mentioned to him he would have brought it to the trial court’s attention.

Officer H. L. Crump, detective in the Little Rock Police Department, testified that he did not participate in the Joe Nelson and Richard Joyner investigation and did not question either man concerning the robbery of Mr. Snyder. He denied that he told Joe Nelson that if he didn’t plead guilty that he would see that he was sent back to the penitentiary. He said that he had previously questioned Nelson but not in connection with either of the offenses to which he entered his pleas of guilty.

Captain Opal Allen testified that he is a deputy sheriff and was chief jailer at the Pulaski County jail. He testified that he was well acquainted with Joe Nelson and denied that he did anything physically, mentally or otherwise to intimidate, coerce, or to force Joe Nelson to enter pleas of guilty to the charges against him of grand larceny and escape. He denied that he threatened to put Nelson into a cell with white inmates and testified that this sort of thing wasn’t done at the county jail. He said that ever since the present sheriff was elected and took office in 1969, the jail cells have all been integrated. He said he does not remember Nelson asking him to check with the prosecuting attorney as to a recommendation in connection with a guilty plea. He said that he has done this for prisoners on other occasions, but does not remember doing so on this occasion. He testified that he definitely remembers that he never did specifically advise Nelson to plead guilty to the charges against him.

One Kenneth Odom testified that he is presently incarcerated in the state penitentiary and is acquainted with Joe Nelson; that he was a prisoner with Nelson in the Pulaski County jail and remembers specifically telling Nelson that he would be physically abused if he did not plead guilty to the charges against him. He said that he so advised Nelson because he felt jailers could punish prisoners any way they wanted to at the jail. He said that they had thrown him (Odom) into a cell with “five colored guys” and that the jailers had told “them colored guys” to kill him. He testified that he does not remember whether he told Nelson this before he entered his pleas of guilty, but that if Nelson says it was before the pleas of guilty, he is telling the truth.

The circuit court record upon the acceptance of Nelson’s pleas of guilty is not as clear as it might have been, but the record indicates that after the trial court was advised that Nelson desired to enter pleas of guilty, Nelson’s court appointed attorney pointed out to the court that Nelson was on parole under previous conviction from Jefferson County and the parole would probably be revoked. The court advised that he had nothing to do with that and asked the prosecuting attorney what recommendation the state had to offer. The prosecuting attorney indicated that he thought 15 years imprisonment would be a proper sentence. The record then appears as follows:

“MR. MCARTHUR: That is correct, Your Honor.
THE COURT: All right. You got any recommendations, Mr. Prosecutor?
MR. MUNROE: I would say, Oh, I would say about fifteen years.
THE COURT: That’s a little high.
MR. MCARTHUR: I think that is going a little stout on this case, Your Honor.
THE COURT: What did he do?
MR. MUNROE: Well, he got three years for attempted bank robbery and fifteen years for robbery.
THE COURT: Now?
MR. MUNROE: Previously.
MR. MCARTHUR: He’s going back to the penitentiary on violation of his parole, Your Honor. He’s got ten years remaining on that sentence apparently. This is the information I get.
MR. STEWART: Who is revoking his parole?
MR. MCARTHUR: It’s here. He is being held now in the County Jail.
THE COURT: Well, what have we got? I don’t know.
MR. MCARTHUR: I was in Municipal Court on the Grand Larceny, charge, and it’s—
MR. MUNROE: (Interposing) He got a robbery in 1964, Your Honor, and he had an attempted robbery in 1960.
THE COURT: Well now I have a couple of old cases down here, 67176 through 179. Are those the cases?
DEFENDANT NELSON: No, sir, this is the first üme I ever been before you.
THE COURT: This is the first time you ever been before me?
DEFENDANT NELSON: Yes, sir.
THE COURT: Well, this man’s name is Nelson, and that is on Odom.
MR. MCARTHUR: Anyway, Your Honor, apparently his parole is being revoked, and he is going back down there on this revocation. Now, I was just told about this a few minutes ago, and, at the time—
THE COURT: (Interposing) You mean the State is revoking his parole, not me?
MR. MCARTHUR: I presume, Your Honor.
THE COURT: Where did he fall from?
DEFENDANT NELSON: Jefferson County.
MR. MUNROE: Well, according to this thing—
THE COURT: (Interposing) Said he fell from Jefferson County.
MR. MUNROE: I believe that is right.
THE COURT: When did he fall?
MR. MUNROE: It was ’64 that he was committed to the penitentiary for fifteen years so it was obviously -
MR. MCARTHUR: (Interposing) Got out in ’69.
MR. MUNROE: So he got out sometime in ’69 because he was charged in ’69 with this, and he’s got a figitive hold from the parole board. I presume it’s the parole board that’s going to revoke him.
DEFENDANT NELSON: They are going to revoke me, sir.
THE COURT: Well, I didn’t have anything to do with that.
MR. MCARTHUR: No.
THE COURT: Well, I’ll give him ten years on these two counts.
MR. MCARTHUR: Now, I don’t want to put Mr. Stewart in a spot, but, when I was asked to stay here I thought there had been an agreement as to a term of years, but—
THE COURT: (Interposing) Well, if you have agreed on something.
MR. STEWART: Well, we got a call this morning from the jail, from Mr. Allen, that Joe Nelson wanted to come up and plead guilty on these two charges, and I was informed at that time that Mr. Nelson had communicated with another deputy in the office and that they had said that we would recommend five years. Then I informed Mr. McArthur of that a few minutes ago, and then Mr. McArthur told me that Mr. Nelson informed him that there was no time mentioned and that’s all I know about it. Now, whether or not there was sometime mentioned, it’s second-hand as far as I am concerned.
DEFENDANT NELSON: He said I talked to who?
MR. MCARTHUR: Well, the conversation was between Captain Allen and somebody in the prosecutor’s office.
MR. MUNROE: Well, that conversation was between Captain Allen and myself. Those files have been sitting on my desk, and Captain called me about a week and a half ago—
THE COURT: (Interposing) Well, what did Captain Allen agree to?
MR. MUNROE: He didn’t agree to anything. He said he had this man down there and wanted to plead guilty and when could we bring him up, and I said anytime that is convenient with you and the Court, and I didn’t make any recommendation of what we would give him.
THE COURT: Well, I feel like ten is about right myself unless they have some kind of agreement. If they have an agreement, I’ll go along with it. The prosecutor said he didn’t make any agreement.
MR. MCARTHUR: I don’t have any idea, Your Honor.
MR. STEWART: I don’t know if Mr. Nelson was under the conception that there was an agreement of five years or not.
THE COURT: Well, if you don’t want to plead guilty, take him back to the jail and we will try him later. You want to take ten?
DEFENDANT NELSON: Yes, sir.
MR. STEWART: Well, has his parole been revoked for ten years?
THE COURT: I don’t know. I’m going to give him ten years.”

From the record before us it is apparent that Nelson was on parole from a 15 year sentence from Jefferson County at the time he entered his plea in the present case. It is clear from the record that Nelson participated in the discussion between the court and the attorneys at the time he entered his pleas, and that at no time did he mention to the court any coercion or plea bargaining for five years or any other specific period of time.

From the record before us we are unable to say that the trial court erred in refusing Nelson’s motion for post-conviction relief.

The judgment is affirmed.


author: Conley Byrd, Justice. J. Fred Jones, Justice.

text:
    ANCHOR CONSTRUCTION COMPANY, Employer, Maryland Casualty Company, Insurance Carrier v. Albert RICE, Employee
    5-5728
    479 S.W. 2d 573
    Opinion delivered May 1, 1972
    [Rehearing denied May 29, 1972.]

      Pearson & Pearson, for appellants.

      R. H. Mills, for appellee.
   Conley Byrd, Justice.

Albert Rice sustained a broken leg while working for Anchor Construction Company. The healing period was complicated by a fat embolism which resulted in some temporary difficulty in breathing. Admittedly Rice was left with a resulting angulation of his left leg which the only medical witness evaluated as a 15% ^permanent partial disability to the left lower extremity from the hip down. Rice claimed and produced some evidence .to show a wage earning loss. The Workmen’s Compensation Commission awarded a 25% disability to the left lower leg under the scheduled injury section, Ark. Stat. Ann. § 81-1313 (c) (Repl. 1960). Both parties have appealed. Rice contends that there is substantial evidence in the record to support an award of permanent partial disability to the body as a whole, up to 50%. Anchor Construction contends that any award for the scheduled injury in excess of the 15% functional disability to the left, lower extremity is contrary to law.

Rice testified that he was 49, had only a fourth grade education and his job experience was as farm labor, sawmill work, truck driving and some rough carpenter work. He had a lump in his throat where the tracheotomy was performed, his left foot angled out and swelled and hurt when he stood on it for a long period. He could no longer do logging and timber work because of his foot and could not do carpenter work because of his inability to climb ladders. He was making $2.00 per hour and averaging 60 hours per week with a total income of $140.00 per week before the accident. He is now averaging $42.00 per week working at a sawmill where the boss lets him sit down when he is tired. He had worked only one 40 hour week between Christmas and the hearing in April. He testified that his sinus and ulcers were problems of general health. He was making a claim for a loss of hearing because of a buzzing noise.

Dr. Carl M. Kendrick testified that when he first saw Rice on January 29, 1968, his condition was critical. Rice has a broken leg which was complicated by a fat embolism. He did a tracheotomy and Rice had a full and complete recovery from the fat embolism and the tracheotomy. He did not make any tests to determine if Rice had suffered brain damage or hearing loss. The biggest test, however, is conversing and talking with the patient and based upon his observation, Rice had made a. complete recovery. It was also inconceivalbe to him that Rice would have had a hearing loss that would not have healed on its own.

Dr. Kendrick, in rating Rice as having a 15% functional disability to the left lower extremity below the hip, took in consideration the angulation of Rice’s foot, that he could not do everything required of him in his usual line of work, that weight bearing for a long period of time will cause swelling and that at intervals he will have pain and swelling in his leg for the rest of his life.

As we view the record the Commission properly found that there was no permanent disability to any part of the body except the left lower extremity below the hip. Of course this reduces the permanent injuries to a scheduled injury under Ark. Stat. Ann. § 81-1313 (c). In Moyers Brothers v. Poe, 249 Ark. 984, 462 S.W. 2d 862 (1971), we held that an injury scheduled under Ark. Stat. Ann. § 81-1313 (c) could not be apportioned to the body as a whole in determining the extent of permanent partial disability as distinguished from permanent total disability. See McNeely v. Clem Mill & Gin Co., 241 Ark. 498, 409 S.W. 2d 502 (1966).

We now come to the issue of whether the Commission in fixing partial loss or partial loss of use of a limb under schedule (c) can consider a wage earning loss in addition to the functional loss. We hold that they cannot. The reason for construing statutes, such as ours, in this manner is set forth in Larson, Workmen’s Compensation § 58.10 in this language:

“Schedule benefits for permanent partial disability are authorized by the statutes of all American jurisdictions, but not under Canadian laws.
“The typical schedule provides that, after the injury has become stabilized and its permanent effects can be appraised, benefits described in terms of regular weekly benefits for specified numbers of weeks shall be paid, ranging, for example, from 312 weeks for an arm, 288 for a leg, and 160 for an eye to 38 for a great toe and TA for one phalange of the little finger. Thses payments are not dependent on actual wage loss. Evidence that claimant has had actual earnings, or has even been regularly employed at greater earnings than before, is completely immaterial.
“This is not, however, to be interpreted as an erratic deviation from the underlying principle of compensation law — that benefits relate to loss of earning capacity and not to physical injury as such. The basic theory remains the same; the only difference is that the effect on earning capacity is a conclusively, presumed one, instead of a specifically proved one based on the individual’s actual wage-loss experience. The effect must necessarily be a presumed one, since it would be obviously unfair to appraise the impact of a permanent injury on earning capacity by looking at claimant’s earning record for some relatively short temporary period preceding the hearing. The alternative is to hold every compensation case involving any degree of permanent impairment open for a lifetime, making specific calculations of the effects of the impairment on claimant’s earnings each time claimant contends that his earnings are being adversely affected. To avoid this protracted administrative task, the apparently cold-blooded system of putting average-price tags on arms, legs, eyes, and fingers has been devised.”

Since the Commission obviously used the wage earning loss to arrive at an award in excess of 15% to the left lower extremity below the hip, it follows that the Commission erred in entering an award in excess of the 15% functional loss.

It has been suggested that perhaps Rice would be entitled to some relief under Ark. Stat. Ann. § 81-1313 (b) (Repl. 1960), which provides:

“In case of temporary partial disability resulting in the decrease of the injured employee’s average weekly wage, there shall be paid to the employee sixty-five per centum [65%] of the difference between the employee’s average weekly wage prior to the accident and his wage earning capacity after the injury.”

However, as we interpret subsection (b) the term “temporary partial disability” refers to the phase of permanent partial disability where the employee, although able to work at some gainful occupation, is still suffering from the effects of the injury, which effects may reasonably be anticipated to disappear within the time fixed for compensation. Here the evidence shows that Rice’s injuries had become fixed by December 5, 1969.

Reversed and remanded.

J. Fred Jones, Justice.

I agree with the majority that this case must be reversed but it is not as obvious to me, as it appears to the majority, that the commission based its award of 25% loss in the use of Rice’s injured leg on a wage earning loss. It is my feeling that in the light of Mr. Rice’s testimony as to what he could and could not do as well after his injury as before, the Commission may well have concluded that Dr. Kendrick was low in his estimate that Rice only had a 15% loss in the use of his leg. Dr. Kendrick testified, however, that he took into consideration the elements testified to by Mr. Rice in arriving at his estimate of 15%. I agree there is no substantial evidence to support an award greater than the 15% testified to by Dr. Kendrick. If the Commission felt that Mr. Rice did suffer a greater loss in the use of his leg than the 15% estimated by Dr. Kendrick, the Commission should have ordered additional medical examinations as it had a right to do under the statute. [Ark. Stat. Ann. §§ 81-1511 and 1319 (i) (Repl. I960)].

We are concerned here with the loss in the use of a body member scheduled under subsection (c) and I agree that the amount payable is fixed by statute. I also agree that an injury scheduled under Ark. Stat. Ann. § 81-1313 (c) (Repl. 1960) cannot be apportioned to the body as a whole and that we laid that question to rest in Moyers Brothers v. Poe, 249 Ark. 984, 462 S.W. 2d 862 (1971). It is my opinion, however, that the case at bar calls for a clear distinction between permanent disability and just plain disability when both may result from injuries scheduled under subsection (c).

The main purpose, if not the only one, in attempting to predetermine the permanency of disability in terms of percentage of total disability, is for the purpose of lump sum settlements. Such purpose and attempt are entirely legitimate and proper under the statute when, but only when, the disability is definitely permanent, and it is in this difficult area that most of the litigation arises in workmen’s compensation cases. The case at bar presents the interesting question of law as to whether an employee, who sustains a compensable injury scheduled under subsection (c), may receive compensation for wage loss disability in addition to the amount payable for a permanent loss scheduled under subsection (c). In McNeely v. Clem Mill & Gin Co., 241 Ark. 498, 409 S.W. 2d 502 (1966), we said that he can, and in the case at bar, as I interpret the majority opinion, we say that he cannot unless the disability is total.

In McNeely, supra, the claimant sustained a scheduled injury resulting in the total loss of his leg below the knee and was paid the maximum benefits for his permanent disability as fixed by statute under schedule (c) amounting to 125 weeks compensation. After the loss was determined and McNeely was paid the statutory amount under subsection (c), he was still on crutches and unable to work and filed a claim for additional benefits. The Commission found him to be totally disabled but very properly refused to “guess” as to how permanent his total disability would be, and simply awarded compensation for total disability and we affirmed. We have no further record of what happened in McNeely’s case but if he continued to be totally disabled until he was paid the maximum compensation benefits payable for total disability, the duration of his compensable disability and the total amount he received amounted to exactly the same as for permanent total disability, the only difference being in the manner which the payments were made. McNeely could only have been paid in weekly payments during the course of his total disability and could not be paid in one lump sum for permanent disability over and above the 125 weeks for the permanent loss of his leg below the knee under schedule (c).

In the case at bar the claimant-appellee Rice’s injury was under exactly the same schedule as was Mc-Neely’s. The only difference in the two injury losses is that McNeely sustained a total loss of the leg below the knee, and Rice sustained a partial loss of use of the entire leg. As already pointed out, subsection (c) is the only provision for permanent disability in a scheduled injury, and the amount set opposite each scheduled injury in subsection (c) is the maximum amount payable for permanent disability as a result of such injury; a maximum of 175 weeks in the case at bar and 125 weeks in McNeely.

Now if Rice’s partial loss of use of his leg had rendered him totally unable to work at gainful employment, he would be entitled to continued total disability benefits under our decision in McNeely. But what of Rice’s situation if because of his scheduled injury, he had only been able to earn one-fourth the wages he earned prior to his injury? Under the majority opinion as I interpret it, he could receive nothing in addition to 15% of 175 weeks for the loss in the use of his leg. What of McNeely had he not been totally disabled from gainful employment but only 75 or 80% disabled? Under the majority opinion as I interpret it, he could receive nothing in addition to the 125 weeks he received under schedule (c).

McNeely was awarded total disability under the first sentence of § 81-1313 (a) which is as follows:

“In case of total disability there shall be paid to the injured employee during the continuance of such total disability sixty-five per centum [65%] of his average weekly wages. . .”

I agree that in the case at bar, Rice did not prove a loss in earnings caused by his injury but had he done so, or if McNeely had proven a partial wage loss because of the injury in his case, it is my opinion that both should have been compensated under § 81-1313 (b) which is as follows:

“In case of temporary partial disability resulting in the decrease of the injured employee’s average weekly wage, there shall be paid to the employee sixty-five per centum [65%] of the difference between the employee’s average weekly wage prior to the accident and his wage earning capacity after the injury.”

In Moyer Brothers v. Poe, supra, we said:

“If the employee’s earning capacity has been diminished or destroyed by such permanent partial disability [from a scheduled injury under (c)], he may be entitled to workmen’s compensation benefits even to the extent of permanent total disability.” (Emphasis and bracketed portions added).

Thus, subsection (a) is the only section of the statute under which compensation may be awarded for just total disability and subsection (b) is the only provision of the statute under which compensation may be awarded for just partial disability. Subsection (b) is as valid as subsection (a) and I am unable to see how an injured employee, who has suffered a permanent injury under subsection (c), can be entitled to total disability benefits under subsection (a) and not be entitled to partial disability benefits under subsection (b), if and when the factual evidence in a given case would justify an award of such benefits. Under the facts as presented by the evidence in this case, I concur in the reversal.

      This section as originally enacted in 1939 and adopted under referendum in 1940, limited temporary partial disability benefits to 350 weeks or $7,000.00. This limitation was eliminated when the section was amended in 1949 to its present form by initiated Act No. 4 of 1949.


author: Conley Byrd, Justice.

text:
    James MICKLE v. Lois MICKLE
    5-5856
    479 S.W. 2d 563
    Opinion delivered May 1, 1972

      Pearce, Robinson & McCord, for appellant.

      Jones, Gilbreath ir Jones, for appellee.
   Conley Byrd, Justice.

From a divorce decree awarding appellee Lois Mickle alimony, child custody and support and certain property rights, appellant James Mickle brings this appeal. For reversal he contends:

1. The alimony and child support awards were excessive;

2. The court erred in awarding appellee an automobile in addition to one third of the personal property;

3. An excessive valuation was placed on appellant’s interest in Data Testing Inc.; and

4. An excessive value was placed on appellant’s engineering practice.

POINT I. Appellant’s earnings from engineering were as follows:

Year Professional income from Total adjusted income practice of Engineering per Federal Income Tax

1965 $20,628.89 $25,219.26

1966 28,589.19 17,487.33

1967 25,139.06 9,505.13

1968 29,379.38 2,432.09

1969 6,410.26 10,232.62

Based upon this evidence the trial court awarded alimony to appellee of $700 per month and $150 per month child support for one child. The rule of law is that in fixing the amount of alimony to be awarded, wide discretion. rests with the trial court and unless there appears a clear abuse of discretion it will not be- disturbed on appeal, Lewis v. Lewis, 202 Ark. 740, 151 S.W. 2d 998 (1941). While the amount allowed here is certainly liberal, a majority of the court is unable to say on the record here made that the trial court abused its discretion. The difference between appellant’s professional income and total adjusted income for tax purposes arose through claimed losses from some “Sub-chapter S” corporations.

POINT II. In addition to an award to appellee of one half of all property held jointly and one third of all appellant’s personal property, the trial court awarded appellee a new car. This was error. The statute, Ark. Stat. Ann. § 34-1214 (Repl. 1962), authorizes an award of one third of the husband’s personal property to the wife — nothing more. We cannot agree with appellee that under the circumstances the award should be classified as child support.

POINT III. Data Testing, Inc., is a corporation wholly owned by appellant and apparently necessary to his engineering practice. At any rate the parties and the trial court treated it as a separate asset for purposes of fixing the amount of appellee’s property rights therein. Appellee’s accountant fixed the book value at $10,000 but in doing so admitted that he did not determine whether the assets shown on the books existed. Appellant, on the other hand, testified that $4,500 of the $10,000 book value was for certain trucks that were sold before appellant obtained complete ownership of Data Testing to Cletus Collum for $4,000, with the understanding that the purchase price would be paid from profits. At the time of the trial appellant considered the balance thereof, together with another account receivable in fne amount of $1,200, to be uncollectible. Under this state of the record we find that the value should be $4,300 instead of the $10,000 placed thereon by the trial court.

POINT IV. The trial court, in fixing the value of appellant’s engineering business, took the value offered by appellee’s accountant Bob Daugherty in the amount of $65,058.28 and added thereto appellant’s accountant’s estimate of the value of “work in progress” in the amount of $11,992.47 for the total valuation of $77,050.75. This was error.

Daugherty in his testimony testified that the net worth of Mickle Associates in his opinion was $65,058.28 plus whatever value is allocated to the unearned fees or contracts that had been accepted in the amount of $20,391.21 and on which no work had been performed and also the value of some unaccepted jobs in the amount of $58,-079.00. Daugherty admits that the difference between his values and those of appellant’s accounts arises as a result of the “accounts receivable”. According to all of the accountants the amount of the receivables billed as of June 30, 1970, amounted to $23,994.89. To this amount, Daugherty added $10,421.19 for some accounts billed on July 10, 1970, and also items totalling $24,630.72 which he calculated as the value of the “work in progress”. Admittedly Daugherty got the most of his information about percentage of completion of unbilled jobs from a clerk in appellant’s office.

Appellant’s accountant John Gardner, after going over the same records and after conferences with appellant, arrived at a $11,992.47 valuation of the “work in progress.”

When the chancellor added Gardner’s $11,992.47 valuation for “work in progress” to Daugherty’s $65,058.28 valuation, error was committed by charging appellant twice for the “work in progress”. In correcting this doubling up on valuation of “work in progress”, we are confronted with two different amounts from different witnesses, both of whom were accepted as credible witnesses by the trial court. However, when we view their testimony from the source from which it was obtained and the fact that Daugherty made no estimate of necessary costs of completion of the jobs, we believe that Gardner’s valuation nore accurately reflects value of the “work in progress”. Admittedly the value of the accepted contracts in the amount of $20,391.21 and the value of the unaccepted contracts in the amount of $58,079.00 are too speculative to have any value. However, it appears that Daugherty properly allowed the $10,421.19 billed on July 10, 1970, as accounts receivable.

Thus when we disallow Daugherty’s “work in progress” valuation of $24,630.72 from his total evaluation of $65,058.28 and add thereto Gardner’s $11,992.47 valuation of “work in progress”, we find the total value of Mickle Associates to be $52,420.03.

While this case was docketed in this court, the trial court made certain modifications of the original decree having to do with the income tax liability of appellee on certain shares of stock in Fairfield Bay, Inc. The record here is insufficient for us to reach this issue. This ruling is without prejudice to any other relief to which the appellee may be entitled to seek.

Reversed and remanded.

      A partnership split temporarily affected income for this year.


text:
    BENTON COUNTY TAXPAYERS ASSOCIATION, Inc., by and through Lloyd EVANS, Sec. v. Ralph BOLAIN, County Judge etal
    5-5866
    S.W. 2d 566
    Opinion delivered May 1, 1972

      Reed ir Reed, by Herbert L. Ray, for appellants.
   Conley Byrd, Justice.

Appellant Benton County Taxpayers Association, Inc., by and through Lloyd Evans, Secretary, brought this action against appellees Ralph Bolain, County Judge; Appraisal Consultants, Inc.; and Harry Pratt, County Clerk, to enjoin expenditure of county funds for a tax reappraisal upon the ground that no valid appropriation had been made by the county quorum for expenditure of the funds. The Chancellor sustained appellees’ demurrer. We agree with the Chancellor.

Appellant’s main contention is that Ark. Stat. Ann. § 17-401 (Repl. 1968), requires the affirmative votes of a majority of the duly elected, qualified and acting justices of the peace of the county. In this connection they alleged that there are 101 positions for justice of the peace in Benton County and that at the special session of the Quorum Court where the money was appropriated only 71 justices of the peace were present and that of those present 37 voted in favor of the appropriation and 34 voted against it.

The appellees on the other hand contend, among other things, that only a majority of a quorum is necessary pursuant to Ark. Stat. Ann. § 17-401 to make a valid appropriation. That statute provides:

“The county Judge, with a majority of the Justices of the Peace of each county, shall constitute a court for levying the taxes and making necessary appropriation for the expenses of the county and shall meet annually at the court house in their respective counties and districts, on the third Monday in November of each year, and at such other time or times as the county court may direct, for the purposes of levying taxes and making said appropriations; and if said court cannot complete its work in one (1) day, by a majority vote it may adjourn to a future fixed day. In case of emergency, the county court may call a special meeting of said court, and a majority shall have jurisdiction and power to act upon any matter authorized by law and designated in the order calling such meeting.”

The applicable rule of law is set forth in 45 ALR 2d 716 in this language:

“Where no statute has required a contrary result, the courts have applied the common law rule that action may be taken by a majority of the members present, provided, of course, that they are sufficient in number to constitute a quorum of the body.”

This same rule was recognized in Hillard v. Bunker, 68 Ark. 340, 58 S.W. 362 (1900). Thus as can be seen, nothing in the statutes, supra, requires anything more than a majority of a quorum. It follows that the chancellor properly dismissed the complaint.

Affirmed.