text:
    Kuhl v. Ark. State Board of Chiropractic Examiners.
    5-2874
    364 S. W. 2d 790
    Opinion delivered February 4, 1963.
    [Rehearing denied March 11, 1963.]

      Dan McCraiu, for appellant.

      Martin, Dodds & Kidd, for appellee.
   Sam Robinson, Associate Justice.

The appellants, William E. and Robert J. Kuhl, are chiropractors authorized to practice in the State of Arkansas. On the 8th day of November, 1960, the Arkansas State Medical Board filed a complaint in the Pulaski Chancery Court, wherein it was alleged that the above named appellants were engaged in the illegal practice of medicine in this state. The complaint alleged that the appellants were doing about a dozen different things that constituted the practice of medicine.

On the 5th day of June, 1961, the Arkansas State Board of Chiropractic Examiners, acting on authority of Ark. Stats. 72-407, filed charges against appellants alleging that they had illegally engaged in the practice of medicine as charged in the complaint which had been filed in the Chancery Court by the Medical Board; and further, that they were guilty of unethical conduct. A summons was issued and served.

On June 13, 1961, appellants filed a motion asking that they be given an immediate hearing on the charges which had been filed on June 5. The hearing was set for June 28. On that date when the matter came on to be heard on the merits, appellants made an oral motion that the Chiropractic Board be required to make the charges more definite and certain. The motion was overruled and the Board proceeded with the hearing. After hearing all the evidence produced, the Chiropractic Board ordered that appellants’ license as chiropractors be revoked. By certiorari appellants took the case to Circuit Court where the order of the Board was affirmed.

On appeal to this court appellants contend, first, that the Board’s action in overruling the motion that the charges be made more definite and certain was error that calls for a reversal. We do not agree. The charges were filed by the Board and summons issued and served on June 5, 1961. Allegations charging appellants with the illegal practice of medicine had been filed in Chancery Court by the Medical Board November 18, 1960, more than six months before the charges were filed by the Chiropractic Board. Moreover, during the interim between June 5,1961 and the time of the hearing on June 28, the only thing filed by appellants was a request for an immediate hearing. Not until the day of the hearing on June 28, did appellants ask that the charges be made more definite and certain. In these circumstances there was no error in denying the motion.

While the matter was pending in the Circuit Court appellants filed a motion asking that the Chiropractic Board be required to deliver to the attorneys for appellants “all books, records, correspondence and minutes pertaining to any disciplinary action taken or contemplated against any chiropractor since the creation of the board for the purpose of permitting defendants to inspect same and copy if desired”. The motion was overruled by the trial court. We fail to see in what manner the action taken by the Board in some other case would be relevant to the case at bar.

After the taking of testimony before the Chiropractic Board and while the matter was still in the hands of the Board, Dr. Murphy, a member of the Board, called a doctor on the staff of the Missouri Pacific Hospital and questioned him about certain facts to determine if appellant, Dr. William Kuhl, had testified truthfully or falsely concerning his dealings with the hospital and the treatment of Missouri Pacific Hospital patients. Of course, if the judge of a court or a juror adopted such means to ascertain the facts, we would quickly hold that it was error to obtain evidence in that fashion. But members of the Chiropractic Board are not lawyers and they are not jurors with a judge available to tell them what they may or may not do. In all probability, members of the Chiropractic Board know nothing about the rules of evidence and perhaps they could never hear an involved case without making errors in admitting or rejecting evidence, if their action in that respect were tested by the rules of evidence applicable to a court of law.

In Bockman v. Arkansas State Medical Board, 229 Ark. 143, 313 S. W. 2d 826, we had the same point under consideration and there we said: ‘ ‘ This is not a criminal prosecution, in which the accused is entitled to be confronted by the witnesses against him. It is an administrative proceeding, civil in nature, . . .”. It is further stated in that case that the Board could not proceed at all if it were required to observe technical rules of evidence. Also, we said in the Bookman case: “Upon this point it is our rule in proceedings like this one that the board’s action will not be set aside on certiorari unless there is an entire absence of substantial evidence to sustain the findings, . . .”. But even so, we would send this case back to the Board of Chiropractic Examiners for a new trial if it appeared that appellants did not receive a fair trial, or that Dr. Murphy’s action in talking to a doctor at the Missouri Pacific Hospital, and perhaps other chiropractors, was in any way prejudicial to appellants; but we cannot see how appellants were prejudiced in any manner by the conversations, because regardless of what was said, and notwithstanding anything that may have been said, there is competent evidence in the record which shows that appellants’ license to practice chiropractics must be revoked.

Even though the Board is not bound by strict rules of evidence, the essential rules of evidence by which rights are asserted or defended must be preserved. But a hearing does not cease to be fair merely because rules of evidence and procedure applicable in judicial proceedings have not been strictly followed, or because some evidence has been improperly rejected or received. Bilokumsky v. Tod, 263 U. S. 149. To render a hearing unfair, the defect or practice must have been such as might have lead to a denial of justice, or there must have been absent one of the elements of due process.

Ark. Stats. 72-604 defines the practice of medicine, in part, as follows: ”... suggesting, recommending, prescribing or administering any form of treatment, operation or healing for the intended palliation, relief, or cure of any physical or mental disease, ailment, injury, condition or defect of any person with the intention of receiving therefor, either directly or indirectly, any fee, gift, or compensation whatsoever; . . .”.

A chiropractic license entitles ‘ ‘ the holder thereof • to adjust by hand the displaced segments of the vertebral column and any displaced tissue in any manner related thereto for the purpose of removing any injury, deformity or abnormality of human beings”. Ark. Stats. 72-404.

Of course if any information Dr. Murphy obtained, not in the presence of appellants, had to be relied on in any respect to support a finding that appellants unlawfully engaged in the practice of medicine, the judgment would have to be reversed; but such is not the case. The printed matter on appellants ’ statement of account form contains a list of the treatments they hold themselves out as giving, which are listed as follows:

“(1) Adjustments, (2) Vitamins or Supplements, (3) Plasmatic Therapy, (4) Traction, (5) Muscle Stimulation, (6) Diathermy, [The generation of heat in tissues of the body, as a result of the resistance presented by the tissues to electric currents of high frequency that is forced through them.] (7) Ultrasonic Therapy, [Super sound wave treatment] (8) Infrared Therapy, [Pertaining to or designating those rays which lie just beyond the red end of the visible spectrum, such as are emitted by a hot nonincandescent body. They are invisible and nonactinic and are detected by their thermal effect. Their wave lengths are longer than those of visible light and shorter than those of radio waves.] (9) Ultraviolet Therapy, [Outside the visible spectrum at its violet end; said of rays more refrangible than the extreme violet rays and opposed to infrared.] (10) Ear Irrigations, (11) X-Rays and Fluoroscopy, (12) Endo or Electrocardiogram, [A tracing made by means of the electric needle of an electrocardiograph which shows the contractions of the heart muscle.] (13) Special Interpretations, (14) Laboratory Examinations, (15) Physical Examinations, (16) Basal Metabolism, [The changes going on continually in living cells, by which energy is provided for vital processes and activities in the body, and new material is produced to repair the waste.] (17) HydroTherapy [Mineral baths] (18) Blood Count — Urine.”

Moreover, appellants sent out literature to other chiropractors offering to do laboratory work and, among other things, they stated: “You no longer have to send your patient or children to other doctors to be treated for stomach worms or pin-worms: Read the enclosed bulletin on the one week treatment and Medication, you may legally give your patient for the above infestations.”

It will be noticed that they advise other chiropractors to give “medication”. They also furnished forms in connection with taking urine specimens in which they indicate that they could diagnose many diseases, including cancer, by examination of the urine. All this adds up to the fact that appellants did not confine their practice to that of chiropractics, but also engaged in the practice of medicine.

Ark. Stats. 72-407 gives the Chiropractic Board authority to revoke appellants’ license “for prescribing any form of medical treatment without having first complied with the law governing the practice of medicine or any method which is not chiropractic”. There is no showing that appellants have complied with the law governing the practice of medicine, and not only is there substantial evidence, but by a great weight of the evidence appellants prescribed treatments and methods of treatment which are not chiropractic.

The'Chiropractic Board’s authority to revoke a license is not an arbitrary one; such authority must be exercised in a proper manner. Ark. Stats. 72-407 gives the Board authority to revoke a license on certain specified grounds one of which is “prescribing any form of medical treatment”. Here, when any and everything that may have been said in appellants absence is wholly disregarded, there remains overwhelming evidence that appellants engaged in the practice of medicine, and it is an aggravated case. The evidence shows that over a considerable period of time members of the Chiropractic Board had attempted, without success, to get appellants to confine their practice to chiropractics. In this case, if the Board had failed to revoke the license on evidence which is properly in the record, there would have been an abuse of authority.

The judgment is affirmed.

       See Miller v. Reed, 234 Ark. 850, 355 S. W. 2d 169.


source: Caselaw Access Project

author: Jim Johnson, Associate Justice.

license: Public Domain

text:
    Dean v. Cole.
    5-2847
    364 S. W. 2d 305
    Opinion delivered February 4, 1963.

      Garner, Shaw (B Kimbrough, for appellant.

      Ralph Robinson, Lonnie Batchelor, for appellee..
   Jim Johnson, Associate Justice.

This is an appeal from a decree dismissing a complaint against a state police officer and another for want of jurisdiction.

In February, 1962, appellant J. D. Dean filed a taxpayer’s suit in the Crawford Chancery Court against appellees Bay Cole and T. B. Nash. The complaint alleged that Cole, individually and in his capacity as supervisor of the Alma Division of the Arkansas State Police, permitted appellee Nash to haul loads in that county in a grossly overloaded condition, without requiring Nash’s trucks to be weighed, or if weighed, without charging him for the excess weight; that he had allowed Nash to purchase “NB” licenses for his trucks when the trucks had not been properly assessed or entitled to use that type of license; and that the state and county were thereby deprived of revenue, which resulted in a violation of Article 16, § 13 of the Arkansas Constitution. Appellant prayed for a temporary and permanent injunction against appellees together with a judgment for all funds due the state and county. Appellees demurred to appellant’s complaint. On April 24, 1962, the trial court ruled that it did not have jurisdiction of appellant’s alleged cause of action and dismissed the complaint. Appellant has appealed, contending only that Crawford County is the proper venue for this action.

In Downey v. Toler, Judge, 214 Ark. 334, 216 S. W. 2d 60, this court had occasion to pass upon substantially the identical question raised in the instant case. The Downey case involved a suit which was filed in Grant County against two state police officers and another individual. This court there examined the venue statutes and stated:

. . [W]e conclude that, for the purposes of determining venue in actions against them, for acts done in their official capacity (as alleged in this case by the plaintiffs in the circuit court), the members of the Arkansas State Police are State officers within the purview of § 1397, Pope’s Digest [Ark. Stats. § 34-201], and can be sued for official acts only in the county of the official residence of the Arkansas State Police, which is Pulaski County.”

The court then ruled that the Grant Ciréuit Court was without jurisdiction to proceed in the action and granted a writ of prohibition against the Grant Circuit Judge.

In the case at bar, since the acts here complained of could only have been permitted or committed by appellee Cole in his official capacity as a member of the Arkansas State Police and not as an individual, the legal principle of Downey v. Toler, Judge, supra, is controlling. Therefore the decree of the trial court must be affirmed.

Mr. Justice Holt not participating.


author: Frank Holt, Associate Justice.

text:
    Ark. State Highway Comm. v. Witkowski.
    5-2867
    364 S. W. 2d 309
    Opinion delivered February 4, 1963.

      Doivell Anders and Edward H. Boyett, for appellant.

      Russell d? Hurley, for appellee.
   Frank Holt, Associate Justice.

This is an appeal from a condemnation proceeding. The appellant, the Arkansas State Highway Commission, brought this suit to acquire land in the Crystal Hill area of Pulaski County needed for the construction of a portion of Interstate Highway No. 40. Four different tracts of land, each belonging to the appellees, M. E. and Ann Ruth 'Witkowski, wore involved in this proceeding and separate verdicts wore rendered as to each tract. This appeal relates only to tract 41 which consists of 9.05 acres from a part of 41.88 acres. The other three tracts consist of several platted lots. Tract 41, or the 9.05 'acres,, is raw acreage. Other facts pertinent to this appeal are discussed in connection with the three points appellant urges for reversal.

POINT 1. Appellant contends that it was reversible error for the court to admit in evidence appellees’ Exhibit A and B, with testimony relative thereto, which are plats showing the subject property as being divided, into lots, blocks and streets.

Exhibit A is a map showing the general location of appellees’ four tracts of property in relation to other property in the same area, some of which is subdivided into lots, blocks and streets and some of which appears as raw acreage. The map also represents that a large portion of the 9.05 acres involved [tract 41] is divided into two tiers of lots numbered 1-25 with a street running between the two rows.

Exhibit B is another plat or map showing only the same numbered lots, their size, a street, a road and 31.5 acres of appellees’ property as being “reserved for future development.”

Appellees, landowners, purchased this property in 1954 and began to subdivide it in 1956. They were also successful in bringing to this property such improvements as a road, gas and water lines. In February, 1961, before the taking of the property in September, 1961, appellees had their regularly employed civil engineer prepare Exhibits A and B in furtherance of their plans to subdivide the property for residential purposes. This property is in the midst, or nearby other property which is platted into and recorded as subdivisions.

Appellee, M. E. Witkowski, had previously acquired other property and developed such into subdivisions. This was his fifth such venture. It is undisputed that the highest and best use of the property in question is for residential purposes. These exhibits were offered and admitted in evidence only for the limited purpose of showing the highest and best use of the property as being for residential purposes and for the further purpose of showing the improvements existing thereon [gas and water lines and gravel road] some several months before the taking by the appellant. This evidence could not result in conjecture or speculation by the jury as to market value to the prejudice of appellant. Ark. State Highway Comm. v. O & B Inc., 227 Ark. 739, 301 S. W. 2d 5.

Appellant urges that the exhibits are inadmissible as evidence in view of our ruling in Arkansas State Highway Comm. v. Watkins, 229 Ark. 27, 313 S. W. 2d 86. The facts in that case, on this point, are quite different. There testimony was admitted as to the number and value per lot of the property. It is true that witnesses in the case at bar testified they considered the value of other lots in the area; however, there was no testimony as to the value per lot of the subject property. The testimony, as to value, was on a raw acreage basis of the tract. Thus, we hold that the court was correct in admitting appellees’ Exhibits A and B under the facts in this case.

POINT II. Appellant next contends that there was reversible error by the court in permitting E. T. Caldwell, a witness for appellees, to testify as to a comparable sale of property by him without the proper foundation of comparability to the property in question. Mr. Caldwell testified that he had recently sold, for $1,900.00, a block of land 150 feet wide and 284 feet long located in the Crystal Hill area. Mr. Caldwell testified that although he lived in the Crystal Hill area he did not know Mr. Witkowski or the location of any of his property. The only evidence as to proximity to subject property is reflected by appellees’ Exhibit A and then proximity must be based upon conjecture. No further evidence by Mr. Caldwell or any other witness was offered to show a comparison or similarity between the Caldwell and Witkowski property [tract 41].

Evidence of a sale of property to establish the market value of another is admissible when similarity between the two tracts has been shown. City of Little Rock v. Sawyer, 228 Ark. 516, 309 S. W. 2d 30.

There can be no fixed definition of similarity or comparability. Similarity does not mean identical, however it does require some reasonable resemblance. See Nichols, Eminent Domain, Vol. 5, § 21.31, p. 439. There are certain criteria of similarity which can be utilized to establish a reasonable resemblance. Important factors of similarity to be considered are location, size and sale price; conditions surrounding the sale of the property, such as the date and character of the sale; business and residential advantages or disadvantages; unimproved, improved or developed land. None or any combination of these criteria were sufficiently shown, “connected up” or “tied in” as between the Caldwell and Witkowski tracts to establish a reasonable resemblance. In the case at bar the jury could only speculate in applying the evidence in question to the market value of the subject property.

Since the proper foundation was not laid for the admissibility of the questioned evidence, we must consider this prejudicial error for which we reverse this case.

POINT III. Appellant next contends that it was reversible error to refuse to strike the testimony of appellees’ witness, Thomas Cox, because he was not sufficiently familiar with the subject property to testify as to the value of same on a “before and after” basis. Since this case is being reversed we see no need to discuss this point inasmuch as this alleged error is not likely to occur in another trial.

Reversed.


author: Carleton Harris, Chief Justice.

text:
    Mize v. Mize.
    5-2871
    364 S. W. 2d 671
    Opinion delivered February 11, 1963.

      Mioses, MicGlellan, Arnold, Oiven <S> MIcBermott, for appellant.

      Gaughan & Laney and Fred E. Briner, for appellee.
   Carleton Harris, Chief Justice.

Benton C. Mize, who died in 1898, was survived by his widow and five children, namely, Maggie Lawhon, Jeff Mize, Mattie Hamilton, Dora Sheridan, and Henry B. Mize. At the time of his death, he ivas the owner of a certain 120 acres of land located in Saline County. The widow died in 1904, and thereafter various members of the family occupied portions of the land until 1913, when D. J. Sheridan, husband of Dora, purchased the interest of three of the heirs, viz., Maggie Lawhon, Jeff Mize and Mattie Hamilton. D. J. and Dora Sheridan lived on the land and reared a family there. Dora died in 1927, and D. J. died in 1931. Thereafter, in 1933, their heirs agreed on the division of the 120 aeres. There were five children, L. B. Sheridan, Havis Sheridan, Will Sheridan, Thomas Sheridan, and Bella Reed. Thomas, the eldest brother, did not desire any of the land, and deeds were prepared by a Benton attorney, and executed by the parties, conveying 30 acres to each of the other heirs. The four children each assumed responsibility for their respective 30 acres, and paid taxes in their own names. Henry Mize died in 1958, leaving a widow and several children. In. October, 1959, appellants (some of the heirs of Maggie Lawhon, Mattie Hamilton, Jeff Mize and Henry B. Mize) instituted suit in the Saline Chancery Court, seeking partition of the 120 acres. The court held that the heirs of Maggie Lawhon, Mattie Hamilton, and Jeff Mize, were bound by the deeds executed by their ancestors to D. J. Sheridan; further, “that a deed was never delivered by H. B. (Henry) Mize, but that the heirs of Henry Mize are now barred by laches and they are estopped from claiming any interest in said land; that the defendants, Will Sheridan, L. B. Sheridan and Havis Sheridan, derived their respective interest in said land by inheritance from their mother, Dora Mize Sheridan, and their father, D. J. Sheridan, and by exchange of deeds among themselves and purchases from others; * * * Title was quieted in appellees, L. B. Sheridan, Havis Sheridan and Will Sheridan. From the decree so entered, comes this appeal. For reversal, appellants simply assert that the doctrine of laches does not apply against those seeking to enforce a legal title.

Able counsel for appellants cite several cases in support of their contention; on the other hand, counsel for appellees cite approximately a like number of cases to sustain their position. Actually, both sides cite several of the same cases. It is apparent that the decision in each case is controlled by the facts of the particular litigation.

In the instant case, the evidence reflects that Henry B. Mize, as a boy, lived in the home of B. J. Sheridan for quite some period of time, paying no room or board. While proof on the part of appellees was that Mize promised to execute a deed for his interest in the property, we attach no significance to this testimony, since Henry Mize was, at the time, a minor. After leaving the farm here involved, Mize farmed at Hensley, subsequently lived for about nine years south of Little Rock on the Arch Street Pike, and after other moves, bought a place on Base Line Road, and lived there for twenty years until his death.

According to the testimony, when D. J. Sheridan sold timber off the land in 1927, Henry contended that he owned a 1/5 interest. Sheridan contended that he owned the property and it was finally agreed that the lumber company would hold the money and Henry could make his claim; however, the latter never did make claim to the money, and it was eventually paid to Sheridan. The evidence further showed that Henry Mize visited the property at times throughout the years. In 1947, the Sheridan heirs had the land surveyed and the corners marked and lines blazed. Adjoining land owners were notified of the survey and a notice was published in the newspaper. It certainly would appear that Mize, a resident of Pulaski County for most of his life after leaving Sheridan’s home, and having made at least some trips back to the area, would have been cognizant of the fact that the Sheridan heirs were claiming the property as their own. Improvements were made by the Sheridans, parts of the land cultivated, taxes paid on the separate tracts, and these acts were certainly indicative of a claim of absolute ownership.

At any rate, according to Mrs. Mize, widow of Henry, her husband decided to “do something” four or five years before his death. Evidence presented by Mrs. Mize and Bill Mize, a son, reflected that Henry had an abstract prepared in 1952 or 1953, and talked with a lawyer. The attorney held the abstract for a time, and turned it over to another attorney, who died with the abstract in his possession. Mrs. Mize testified that her husband then had another abstract made, but no subsequent action was taken. The widow also stated that her husband had known that L. B. Sheridan and Havis Sheridan had bnilt homes on the land.

From the facts herein enumerated, it is established that for a period of more than forty years, though he lived within a comparatively short distance of the land, did some visiting with members of the Sheridan family, and was aware of the improvements that had been made to the premises, no action was ever taken by Henry Mize to enforce his claim to the property. As stated at the outset, authority is cited by both sides, though some of the cases cited by appellants likewise recognize the defense of laches where the facts justify that defense.

For instance, in Tatum v. Arkansas Lbr. Co., 103 Ark. 251, 146 S. W. 135, this court said,

“Laches in legal significance is not mere delay, but delay that works disadvantage to another. So long as parties are in the same condition, it matters little whether he presses a right promptly or slowly within limits allowed by law; but when knowing his rights he takes no step to enforce them until the condition of the other party has in good faith become so changed that he cannot be restored to his former state, if the right be then enforced, delay becomes inequitable, and operates as estoppel against the assertion of the right. The disadvantage may come from the loss of evidence, change of title, intervention of equities, and other causes; but, when a court sees negligence on one side and injury therefrom on the other, it is a ground for denial of relief. ’ ’

We have held that as between co-tenants, possession of one is the possession of all, unless there has been an actual ouster or the possession be hostile to the right of the others. Ashley v. Garrett, 218 Ark. 126, 234 S. W. 2d 513. We are of the view that the proof in the instant case sustains the argument of appellees. A case that bears some similarity to the one at bar is Mitchell v. Malvern Lbr. Co., 222 Ark. 266, 258 S. W. 2d 549. There, we said,

“With a variety of defenses suggested by the appellee, we select laches as the one on which to rest the affirmance. The uncontradicted evidence established:
(a) that even though the lands ivere wild and unimproved, nevertheless Malvern has all the time since 1934 paid all taxes on the lands under a deed duly of record and definitely describing the lands, and Malvern has all the time had the lines around the lands painted and blazed, and two of its employees have regularly checked the lands at least twice each month to see that there was no trespassing;
(b) that some of the plaintiffs have resided within one mile of the lands and have frequently passed by the said lands;
(c) that McKinley Mitchell — the moving spirit in the present litigation — learned in 1942 of the sale of the lands to Malvern and of Malvern’s possession of the lands, and offered in that year to ‘redeem’ the lands;
(d) that after learning of Malvern’s deed and possession in 1942, there was a delay until 1952 before instituting the present suit;” * * *

It is also, of course, noticeable that though, according to the proof, Mize apparently made some preliminary preparations in 1952 or 1953, to seek enforcement of his claim, he never did institute suit, and this litigation did not commence until after his death.

We think the facts support the conclusion reached by the Chancellor.

Affirmed.

       Della Reed failed to pay the taxes on her 30 acres and it subsequently forfeited to the state, was sold by the state to one Albert Childress, and was later purchased by L. B. Sheridan and Havis Sheridan.


author: Ed F. McFaddin, Associate Justice.

text:
    Lillard v. State.
    5065
    365 S. W. 2d 144
    Opinion delivered February 11, 1963.
    [Rehearing denied March 18, 1963.]

      Harry C. Robinson, for appellant.

      Jack Holt, Jr., Atty. General, by, Dennis W. Horton and Jack L. Lessenberry, Assistant Attorneys General, for appellee.
   Ed F. McFaddin, Associate Justice.

Appellant Dave Lillard was duly charged with the crime of murder in the first degree (§ 41-2205 Ark. Stats.) for the homicide of Mack King. Appellant’s trial resulted in a conviction of murder in the second degree 41-2206 Ark. Stats.), and a sentence of seven years; and from that judgment this appeal is prosecuted. The motion for new trial contains six assignments.

I. Sufficiency Of The Evidence. Assignments 1 to 4, inclusive, concern this topic. At about 9:30 P.M. on June 14, 1960, Mack King and his brother, Pete Mack, along with two other persons (William Hill and Leon Majors), were in front of the Twin City Social Club, located on State Street in Little Rock. Some of the four named persons were seated, and some were standing. Appellant Dave Lillard drove by in his car and Pete Mack said, “Hey, David, you looking for me?”; to which appellant replied, “No, I thought maybe you-all was looking for me — you been messing in my business.” With nothing further said, the appellant seized his 12-gauge shotgun, emerged from his car, and fired several shots, which resulted in the death of Mack King. No other person fired any shots. The Coroner testified that Mack King died that night as a result of multiple shotgun wounds which fractured the third and fifth ribs, punctured the left lung, and injured the spinal column, the face, and body. The homicide by appellant was established. Appellant, testifying in his own behalf, stated: that he emerged from his car and started shooting; that Pete Mack had threatened him; that Pete Mack put his hand in his pocket as though he were “reaching for a gun”; and that appellant was shooting at Pete Mack and not at Mack King, whom he shot.

We have detailed a sufficient amount of the testimony to establish that appellant’s assignments are without merit. Second degree murder — of which the defendant was convicted — requires the proof of (1) unlawful killing, and (2) malice. Wooten v. State, 220 Ark. 750, 249 S. W. 2d 964. The killing was admitted, and no witness substantiated the appellant as to Pete Mack making any movement that might have indicated that he was “reaching in his pocket for a gun.” Malice and intent to kill may be implied from the use of a weapon, such as the shotgun used by appellant in this case. Wallin v. State, 210 Ark. 616, 197 S. W. 2d 26. The fact that appellant intended to shoot Pete Mack and by mistake shot Mack King is no defense. In Clingham v. State, 207 Ark. 686, 182 S. W. 2d 472, we said:

“Where one, in an attempt to murder, slays by mistake a person other than the intended victim, he is nevertheless guilty of murder. Ringer v. State, 74 Ark. 262, 85 S. W. 410; Brooks v. State, 141 Ark. 57, 216 S. W. 705; Daniels v. State, 182 Ark. 564, 32 S. W. 2d 169; 26 Am. Jur. 179.”

To the same effect see Gaines v. State, 208 Ark. 293, 186 S. W. 2d 154; Henley v. State, 210 Ark. 759, 197 S. W. 2d 468; and Johnson v. State, 214 Ark. 902, 218 S. W. 2d 687.

The evidence was amply sufficient to take the case to the jury and to support the verdict and judgment rendered.

II. Admission Of Photographs. The fifth assignment in the motion for new trial reads:

“The Court erred in allowing the State to offer a series of seven pictures, marked Exhibits ‘a’, ‘b’, ‘c’, ‘d’, ‘e’, £f’, and ‘h’, over the objections and exceptions of the defendant.”

Exhibits “a”, “b”, “c”, and “d” were pictures of the deceased, taken shortly after the killing, and these pictures showed that he was shot in the back, in the face, in the head, and in the neck. Exhibit “f” was a picture of the door to the Twin City Social Club, showing that at least twelve shots hit the door; and Exhibit “h” showed that at least ten shots hit the door facing. These pictures were admitted over appellant’s objections. Exhibit-“e” was a picture originally ruled out by the Court, but then later introduced without objection, and it showed the street in front of the social club. There was no error in the ruling of the Court admitting any of these pictures. It was testified that every picture was taken at the direction of and in the presence of the officers, that the pictures were accurate, and that each fairly and truthfully represented the subject matter. See Higdon v. State, 213 Ark. 881, 213 S. W. 2d 621; and Oliver v. State, 225 Ark. 809, 286 S. W. 2d 17.

III. The Jury Panel. The sixth assignment in the motion for new trial reads:

“The Court erred in refusing to grant the defendant’s motion to quash the jury panel because the jury had been improperly selected as set out in his motion, over the objections and exceptions of the defendant.”

Only two witnesses were offered to sustain the motion to quash. The first witness was Mr. Grip Robertson (Chief Deputy Tax Collector of Pulaski County), who introduced the current printed poll tax book of Pulaski County, and testified that in preparing the book when the copy of the poll tax receipt showed the letter “C” opposite the name of the person paying the poll tax, then the printed list likewise showed the letter “C”, which meant that the person paying was a Negro; but that if a person wrote in for a poll tax receipt and did not designate color, then there was no “c” shown by such name. That was the extent of the testimony of this witness, except the following:

‘ ‘ Q. Mr. Robertson, do you have anything to do with the selection of the commissioners or jurors?
“A. No.
“Q. Do you know whether or not the jury commissioners use the designations after the names to select the jury list?
“A. I do not.
“MR. ADKISSON: That is all.
“THE COURT: As a matter of fact, you don’t know whether or not they use this list at all, do you?
“A. No, I don’t know.’’

The only other witness called on the motion to quash was P. B. Frederick (Deputy Circuit Clerk); and he testified that five Negroes were then serving on the regular and alternate jury panel in the First Division Circuit Court in which this case was being tried. We have given the sum total of all the evidence adduced by the appellant on his motion. The Trial Court refused to quash the jury panel; and we find the evidence offered by the appellant to be entirely insufficient to reverse the ruling of the Court. No Jury Commissioner was called to state how the panel was selected; and it was not even shown that no Negroes were on the jury that was selected to try this case.

The appellant cites two cases in his behalf. One is Avery v. Georgia, 345 U. S. 559, 73 L. Ed. 1244, 73 S. Ct. 891; and the other is Bailey v. Henslee, 287 F. 2d 936. Each of these cases presented a factual situation vastly different from that in the case at bar. In the Avery case, it was shown that no Negro was selected to serve on a panel of sixty jurors. In the case at bar, it was shown that five Negroes were on the panel at the term of Court in which the appellant was tried.' There was no testimony that any discrimination was used by the Jury Commissioners in selecting the personnel for the panel.

The opinion of the Eighth Circuit Court in Bailey v. Henslee (supra) is scholarly and thorough. In that case, decided in March 1961, Judge Blackmun reviewed all of the leading cases on the matter of discrimination in selection of a jury, and listed nine factual matters present in that case, which ‘ ‘ taken in the aggregate lead us to the conclusion that a prima facie case of limitation of members of the Negro race in the selection of this defendant’s petit jury panel was established ...” The seventh of these factual matters mentioned by Judge Blackmun was the use of the letter “c” after the name of a Negro poll taxpayer. The absence in the present case of any evidence of the other eight factual matters regarded as essential in the Bailey-Henslee case, clearly demonstrates that the appellant has failed to show racial discrimination. Furthermore, the fact that there were five Negroes on the jury panel of the First Division Circuit Court at the time the appellant was tried goes far to negative any claim of discrimination. The Trial Court was correct in refusing to quash the jury panel on the evidence offered by the appellant.

Finding no error, the judgment is affirmed.

Robinson and Holt, JJ., not participating.

       The homicide occurred on June 14, 1960; appellant was allowed to, and did, make bail; he obtained repeated continuances; and the trial from which comes this appeal was held on June 21,1962.

       The motion to quash the jury panel was filed on June 21, 1962, and read:
      “That the entire jury panel should be quashed, because the defendant is a negro, and the Commissioners of this Court could not, and did not select a fair and impartial jury to try the defendant, or. any other member of the negro, or colored, race, by designation with a capital letter (c) opposite the name of each negro or colored person, which is a violation of the defendant’s constitutional rights as provided by the Constitution of the State of Arkansas, and the constitution of the United States.
      “That there is not a fair representation of negroes or colored people on the Jury Panel because the Jury Commissioners are able to exclude them because of the way the qualified electors are designated.”

       At one time the jurors from the Second and Third Divisions of Pulaski Circuit Court could be used in the First Division; hut Act No. 3 of the First Extraordinary Session of 1961 provided that jurors impaneled on the regular or special panels of the Second or Third Division of the Pulaski Circuit Court could not serve in the First Division.


author: G-eorge Rose Smith, J.

text:
    Bailey v. Stewart.
    5-2897
    364 S. W. 2d 662
    Opinion delivered February 11, 1963.

      Williams & Gardner, for appellant.

      Jeff Motley, for appellee.
   G-eorge Rose Smith, J.

This is an action by Mr. and Mrs. John L. Stewart to recover damages for personal injuries suffered by Stewart in a traffic accident and for the ensuing loss of consortium suffered by his wife. The defendant Bailey appeals from a judgment, entered upon a jury verdict, awarding $10,000 to the husband and $1,000 to the wife. The appellant questions the sufficiency of the evidence and the amount of each award.

It is first contended that Bailey was entitled to a directed verdict, for the reason that Stewart’s injuries were caused solely by the negligence of a third person, Jimmy F. Cossey. We think the court was right in submitting the case to the jury, whose verdict found Bailey and Cossey to be joint tortfeasors, with 50 per cent of the total negligence being attributed to each of them.

The accident happened on a November afternoon near a drive-in cafe in Dardanelle, where Stewart was standing outside a window provided for take-out purchases. Cossey, driving a car owned by Don Duvall, and Bailey, driving his two-ton truck, were approaching the vicinity of the cafe from opposite directions. Cossey attempted to turn left, across Bailey’s traffic lane, to enter the cafe parking area. Cossey testified that he signaled his intention to turn, with his arm and with his signal light, and that he thought he could turn safely in front of the truck, which was still some distance away. In this thought Cossey proved to be mistaken. Bailey’s truck, after laying down 42 feet of skid marks, struck the righthand side of Cossey’s car, which had almost completely left the street, and knocked it with great force against a parked truck. The latter vehicle rolled forward and pinned Stewart to the wall of the cafe, causing serious and painful injuries to both his legs.

We think it plain that the issue of Bailey’s negligence involved a question of fact for the jury. Bailey testified that Cossey did not give a signal of any kind. The jury could have found, however, that the signal was actually given and that consequently Bailey was guilty of negligence in failing to observe it and thereby avoid the collision.

We do not consider Mrs. Stewart’s $1,000 judgment to be excessive. A wife’s right to recover for loss of consortium was recognized by our decision in Missouri Pacific Transp. Co. v. Miller, 227 Ark. 351, 299 S. W. 2d 41. Stewart was 36 years old at the time of his injury. He was confined to a hospital for eleven days and to his home for six weeks. During much of this time he was completely helpless, lying in bed with at first both legs and later one leg suspended in the air in a cast. Mrs. Stewart acted in the home as her husband’s nurse, giving up her job to be with him constantly and to attend to all his physical needs. It was about six months before Stewart was able to walk without crutches. In the circumstances it cannot be said that the verdict for Mrs. Stewart is so excessive as to require a reduction in this court.

This brings us to the principal question in the case: Did the trial judge, in entering a judgment in favor of Stewart for $10,000, correctly interpret the jury’s answer to a special interrogatory upon the subject of Stewart’s damages 1 The appellant contends that the award should have been credited with a settlement of $9,000 that Stewart had received from Cossey and Duvall, leaving a net liability against Bailey of only $1,000.

Bailey, the original defendant, brought Cossey and Duvall into the case as third party defendants. They pleaded, and subsequently proved, that they had extinguished their liability by the payment of $9,000 to Mr. and Mrs. Stewart. The release which the Stewarts executed, and which was introduced at the trial, recited that it was intended to conform to the Uniform Contribution Among Joint Tortfeasors Act and to relieve Cossey and Duvall from any liability for contribution. Ark. Stats. 1947, § 34-1005, was referred to in the release.

The trial judge, in instructing the jury, explained that the Stewarts ’ execution of the release did not relieve Bailey from liability, but the court did not indicate to the jury whether or not Bailey was entitled to benefit by the $9,000 compromise settlement. Instead, the trial judge told the jury that he would be able to enter a proper judgment if the jurors answered certain interrogatories, among which the following (with the jury’s answers) are pertinent to this appeal:

“1. Do you find from a preponderance of the evidence that the plaintiff, John L. Stewart, is entitled to recover damages in this action from the defendant, John M. Bailey?
“Yes.
“2. If your answer to the above question is ‘Yes’ then answer this question:
“What do you find from the evidence, if any, to be the actual damages sustained by the plaintiff, John L. Stewart, if any, without reference to the amount of payment in settlement as made by Jimmy F. Cossey and Don D. Duvall?
“$10,000.00
(Insert actual damages, if any) ”

Before the court entered judgment upon the verdict the Stewarts ’ attorney filed a motion asking that Stewart be given judgment for the full $10,000, or, in the alternative, that he be granted a new trial owing to the jury’s mistake. With this motion counsel tendered an affidavit, signed by the jurors, stating that the jury had intended for the $10,000 award to be in addition to the $9,000 settlement. The parties submitted briefs upon Stewart’s motion. The trial court, citing Giem v. Williams, 215 Ark. 705, 222 S. W. 2d 800, and Walton v. Tull, 234 Ark. 882, 356 S. W. 2d 20, held that Stewart was entitled to judgment for the entire $10,000, without any credit being given for the $9,000 settlement.

We lay aside, as did the circuit judge, the jurors’ affidavit. Such an attempt to explain the verdict is incompetent, for reasons of public policy, and should not have been made. Reiff v. Interstate Business Men’s Acc. Assn., 127 Ark. 254, 192 S. W. 216.

The Giem case and the Walton case, relied upon by the trial judge, do not quite reach the point at issue. In the former we held that where the jury had been informed of a compromise payment made by another tortfeasor its amount should not have been subtracted from the verdict, as the jury had already taken it into consideration. In the Walton case we indicated (and later declared, after the trial below, in Woodard v. Holliday, 235 Ark. 744, 361 S. W. 2d 744) that snch a deduction would be proper where the jury had not been told about the settlement made by the other tortfeasor.

Those cases would be controlling if it were not for the fact that here the pivotal question was explicitly submitted to the jury by the court’s interrogatories. The court asked the jury, by the interrogatory we have quoted: “What do you find ... to be the actual damages sustained by the plaintiff, John L. Stewart, if any, without reference to the amount of payment in settlement as made by Jimmy F. Cossey and Don D. Duvall¶”

We cannot construe the clause that we have italicized as being the equivalent of saying “after first having deducted” the amount of the Cossey-Duvall payment. In fact, the actual statement and the one we have just suggested are diametrically opposite. We find it impossible to hold that a finding of the actual damages “without reference” to the amount of a compromise settlement is in effect a finding of those damages after the amount of the settlement has been taken into account.

The appellant asks that we end this litigation by reducing Stewart’s judgment to $1,000. We are not convinced that justice would be achieved by that course. The Stewarts’ post-trial motion asked for judgment in the full amount of the verdict or for a new trial. The circuit judge erroneously entered judgment for the full amount. Had he rejected that part of the movants’ prayer he might still have granted a new trial upon the ground that a net award of $1,000 damages to Stewart (the amount of the verdict less the amount of the settlement) would have been against the weight of the evidence. Oliver v. State, 34 Ark. 632; Bockman v. World Ins. Co., 222 Ark. 877, 263 S. W. 2d 486. The fact that the trial judge actually entered a judgment for the full $10,000 strongly indicates that he would not have regarded a $1,000 recovery as representing everything that Stewart was entitled to. In this situation the only fair course is to grant Stewart’s alternative prayer for a new trial.

The judgment in favor of Stewart is reversed, and, unless he elects within seventeen days to accept a judgment for $1,000 in accordance with the verdict, the cause will be remanded for a new trial.


author: Paul Ward, Associate Justice.

text:
    Wilhelm v. Taylor, Judge.
    5-2910
    364 S. W. 2d 674
    Opinion delivered February 11, 1963.

      George K. Cracraft, Jr., for petitioner.

      Howell, Price & Worsham, Gentry S Gentry, John Anclerson, David Solomon and Charles Roscopf, for respondent.
   Paul Ward, Associate Justice.

This proceeding calls for an interpretation of Ark. Stats. § 27-340, which provides a method of obtaining service on a “non-resident”' person, firm, partnership, etc. The decisive issue is. whether the above section of the statutes applies to the petitioner, Mary Ruth Wilhelm, under the facts and circumstances of this case.

Factual Background. The uncontroverted material facts pertinent to a decision of the issue above mentioned are as presently set out. Prior to 1953 the petitioner was a domiciliary of Kansas; about that time she moved to Helena, Arkansas where she began working, as an anesthesiologist, in a hospital; while so engaged she assisted Dr. Kirkman in operating on one Mose Tittle in June of 1959; on about the first of 1960 petitioner left Helena and went to Houston, Texas where she began work in a hospital and where she is still working. Petitioner remained in Helena continuously (or practically so) from the time she arrived in 1953 until she left in 1960.

On June 13, 1961 the said Tittle filed a suit in the Phillips County Circuit Court against the petitioner, Dr. Kirkman, the hospital (where the operation was performed) and the insurance carrier, seeking damages for (alleged) personal injuries caused by the (alleged) negligence of the petitioner and the doctor. No attempt was made to obtain service on petitioner until about the first of April 1962 when Tittle undertook (without success) to get personal service and to serve her as a domiciliary of Arkansas. Then, after the doctor and the insurance carrier had filed cross-complaints against petitioner, they attempted to get service on her as a “non-resident” of Arkansas under the statute first mentioned. It is conceded that the methods of service used conformed with the provisions of the statute.

In considering the issue presented it must be conceded that: (a) Petitioner was never at any time a domiciliary of this state; (b) petitioner lived constantly in this state about six years; (c) petitioner remained in Helena about six months after the operation on Tittle; (d) petitioner is now, and has been since January 1960, a resident of Texas.

Petitioner made a special appearance in the tort action and moved the trial court to quash the attempted service, and to dismiss the alleged cause of action against her on the ground the court had acquired no jurisdiction over her person. In denying the motion, the trial court, among other things said:

“. . . that the word ‘resident’ as used in Act No. 347 of the acts of 1947 (Section 27-340 Ark. Stats. Anno.) is synonymous with domicile and means one having a permanent residence or domicile within the State of Arkansas and as the defendant, Mary Ruth Wilhelm, was and is a non-resident of this state within the meaning of said Act, service upon the Secretary of State as therein provided is sufficient service to give this court jurisdiction of her person and her motion to quash service under said statute ought to be overruled ...”

After careful consideration we are led to the conclusion that the action of the trial court cannot be sustained. We have attempted below, for the sake of brevity, to copy only so much of § 27-340 as is applicable to the facts of this case.

“Any non-resident person . . . who shall do any . . . character of work or service in this State shall, by the doing of such ... be deemed to have appointed the Secretary of State ... to be the true and lawful attorney or agent of such non-resident, upon whom process may be served in any action accrued or accruing from . . . the performing of such work ... by any such non-resident ...”

(The statute further provides that such service will authorize a personal judgment.)

This Court has so many times, and so uniformly, recognized a distinct difference between “residence” and “domicile” that only a few typical decisions need be cited: See: Krone v. Cooper, 43 Ark. 547; Norton v. Purkins, Judge, 203 Ark. 586, 157 S. W. 2d 765; Missouri Pacific Railroad Company, Thompson, Trustee v. Lawrence, 215 Ark. 718, 223 S. W. 2d 823. In the Cooper case, supra, it was pointed out that the word “domicile” had a broader meaning than the word “residence”, and that one could be a resident of a place without being domiciled there. In the Norton case, supra, it was held a person could “reside” in a place up to two years and not be domiciled there. The Court was there construing an Act of the Legislature, and said: “We do not think that ‘resided’, as used in this act, necessarily means one’s permanent abode or legal residence or domicile.” In the Lawrence case, supra, this Court was called upon to distinguish between the meaning of residence and domicile as applied to Act 314 of 1939 where a question of venue was raised. The question was posed and answered by the Court in the following language:

‘ ‘ The answer to the question of venue posed depends upon the answer to these two questions. (1) Is residence synonymous with domicile? (2) If not, was appellee a resident of Pulaski County at the time of his injury? If the words ‘Residence’ and ‘Domicile’ are synonymous, then the Clark County circuit court had jurisdiction, as we think the testimony was sufficient to support a finding that appellee’s domicile was in Clark County at the time of his injury.
“In our opinion the words are not synonymous and cannot properly be used interchangeably. Cases without number have pointed out the difference in meaning which the words import, and our own early case of Krone v. Cooper, 43 Ark. 547, is one of these.”

Prom the above and many other similar statements by this Court we are compelled to conclude the petitioner was, at the time the alleged tort action arose, a “resident” of Arkansas. That being true, it must follow that she was not a “non-resident”, and therefore not subject to service under § 27-340 of the Ark. Stats. This case is easily distinguished from Harrison v. Matthews (decided December 17,1962), 235 Ark. 915, 362 S. W. 2d 704, which deals with service on a non-resident who was also a domiciliary of this state.

Remedy. The respondent’s contention that prohibition is not the proper remedy, because the trial court’s order was based on a disputed question of fact, is without merit. We are unable to see where the court’s ruling involved any factual dispute.

Writ granted.


author: Sam Robinson, Associate Justice.

text:
    Daley v. State.
    506
    364 S. W. 2d 678
    Opinion delivered February 11, 1963.

      Shaver, Tackett S Jones, for appellant.

      Jack Holt, Jr., Attorney General, for appellee.
   Sam Robinson, Associate Justice.

Appellants, C. R. Daley, Johnny Loveday, and R. Loveday, have appealed from a conviction of the crime of false pretense. They were charged with defrauding Jessie A. Mason, an elderly man 82 years of age, out of about $650.00 by representing that they were qualified termite exterminators. The case was tried before the Court sitting ás a jury. The Court found all three defendants guilty and they have appealed, contending that the evidence is not sufficient to sustain the verdicts.

It is firmly established that, when sitting as a jury, the Court’s finding carries the same weight as a jury verdict, and if there is substantial evidence of guilt it is sufficient to sustain the trial court.

The evidence is overwhelming to the effect that the appellants defrauded Mr. Mason out of about $650.00 in connection with work they did on his house and premises in exterminating termites and other pests. The great weight of the evidence proves that they collected over $900.00 for doing about $230.00 worth of work.

The only question is whether appellants’ acts amounted to false pretense within the meaning of Ark. Stats. 41-1901, which provides: “Every person, firm or corporation who with intent to defraud, cheat or avoid payment therefor, shall designedly by color of any false token or writing, or by any other written or oral false pretense, obtain a signature to any written instrument, or obtain any money, personal property, right of action, service, information or other valuable thing or effects whatever, upon conviction thereof, shall be deemed guilty of larceny, and punished accordingly. ’ ’

The information charges that the defendants obtained the money from Mr. Mason by falsely representing to him that they were qualified termite exterminators. The evidence is sufficient to show that all three appellants made such representation, and we think the evidence shows that in representing to Mr. Mason that they were qualified, they used that term in the sense that they were licensed. One of the definitions of the word ‘ qualified” as given by Webster is: “Having complied with the specific requirements or precedent conditions for an . . . employment”. The appellants had no license.

Ark. Stats. 77-131 provides: “Any person, firm or corporation who shall, for compensation, give advice, or engage in work for the control of insect pests, or plant diseases, including structural insect pests, and/or rodents, or shall engage in the business of treating seed for the control of such pests or diseases, or who shall solicit such work in any manner, shall be deemed guilty of a misdemeanor unless said person, firm or corporation is in possession of a valid'license issued for that purpose by the State Plant Board,... ”.

.Ark. Stats. 77-132 provides: “When application is made for such license, the State Plant Board shall prescribe in advance an examination in writing which shall be given by some person designated by the State Plant Board who is not interested financially or otherwise in pest control work in Arkansas, and such representative shall examine the applicant by a written examination as above prescribed and graded by said examiner and said examination passed shall be certified to the State Plant Board for approval. . . . ” .

Ark. Stats. 77-133.1 provides for an inspection by the State Plant Board.

Ark. Stats. 77-136.1 authorizes the Board to require monthly reports from licensed operators giving the description and location of properties treated, and such other information relative thereto as the Plant Board shall deem advisable.

If appellants had been licensed exterminators they could have been required to make reports and the State Plant Board could have investigated their work. In these circumstances it would have been more difficult for them to perpetrate a fraud.

There is substantial evidence to sustain a finding that appellants falsely represented themselves as qualified termite exterminators for the purpose of fraudulently obtaining a considerable amount of money.

Affirmed.


author: Jim Johnson, Associate Justice. Paul Ward, Associate Justice.

text:
    Baker v. State.
    5062
    365 S. W. 2d 119
    Opinion delivered February 11, 1963.
    [Rehearing denied March 18, 1963.]

      Charles W. Atkinson and James JR. Hale, for appellant.

      Jack Holt, Jr., Attorney General, by Milas H. Hale, Asst. Atty. Gen., for appellee.
   Jim Johnson, Associate Justice.

This is an appeal from a conviction for aggravated assault. Appellant, Albert Frank Baker, and the prosecuting witness had been acquainted for about ten years and had previously had trouble of a non-violent nature. On March 15, 1962, they met inadvertently at a place of business in Lincoln, Arkansas. A conversation ensued during which the prosecuting witness armed himself with a piece of a grain drill and appellant armed himself with a mowing-machine sickle guard. Both left the building by the front door and a fight ensued in which the prosecuting witness used a stabilizer bar from a Ford tractor, which was in his car, and appellant used the sickle guard. Both parties received some injuries, and after the prosecuting witness had knocked appellant down with the stabilizer bar, they were separated, the sheriff was called, and appellant placed under arrest. Appellant was charged by information with the crime of assault with intent to kill. At trial, the jury returned a verdict of guilty of aggravated assault and fixed appellant’s punishment at a fine of $1,000.00 and 180 days in jail. Appellant has appealed from the judgment on the verdict.

Appellant’s principal point urged for reversal contends, “That the court erred in refusing- to permit appellant to testify about and to show the jury the nature and extent of the injuries he sustained at the hands of the prosecuting witness.”

The record relative to this point is as follows:

4 ‘ Q. In what condition — tell the jury in what condition were your wounds ?
“Prosecuting- Attorney: State objects. Not material for the purpose of this action.
“The Court: I will sustain the objection. What is the materiality!
“Defendant’s Counsel: It certainly is material. We would like to make a record on it.
“The Court: All right, make your record. I will sustain the objection. It was an hour later.
“Defendant’s Counsel: Pardon! I don’t know what the time was.
“The Court: I will sustain the objection. You can make your record, in the absence of the jury.
“Defendant’s Counsel! (Out of the hearing of the jury.) Let the record show that if he were permitted to answer, this witness would state that he received a serious injury, cut several inches long on the top of his head and that he was bleeding profusely from that wound Avhen he arrived at the sheriff’s office and that he remained there for approximately one and one-half hours before he Avas ever taken to a physician for examination or treatment.
“The Court: All right.
“Defendant’s Counsel:
Q. Mr. Baker, were you later, or ultimately taken to a doctor.
A. Yes, sir.
Q. Who took you!
A. Bill.
Q. Bill Brooks!
A. Yes.
Q. To AAdiich doctor were you taken!
A. He took me down to that clinic. I believe his name was Dr. Clark.
Q. Dr. LeMon Clark! He saAV you!
A. Yes, sir.
Q. Did Dr. Clark examine you, sir!
A. Yes, sir.
•Q. Will you tell the jury what, if any, treatment he administered to you?
Prosecuting Attorney: State objects.
The Court: Sustained. It isn’t material.
Defendant’s Counsel: We certainly think it is material, the kind of injuries Mr. Baker sustained.
Prosecuting Attorney: Doesn’t matter whether if was little, great, or what, under our theory.
The Court: The burden is on the state.

Defendant’s Counsel: (Out of hearing of the jury.) Note our exceptions and let the record state that if permitted to answer, this witness would state that Dr. Clark examined his injuries and sutured the wound in his head and that it took eleven stitches to sew up the wound. ’ ’

The State forcefully argues that the trial court acted properly in excluding evidence of appellant’s injury since it was not relevant due to the fact that self-defense was not part of appellant’s plea. Appellant’s plea to the information was not guilty. Under the general plea of not guilty appellant had the right to avail himself of any defense which the testimony adduced tended to establish. Flake v. State, 156 Ark. 34, 245 S. W. 174. Appellant testified that he thought the fight was over when he and the prosecuting witness left the building; that the prosecuting witness then pulled an iron stabilizer bar from his car and swung the bar at appellant with both hands, at which time appellant threw the sickle guard which bounced off the top of the prosecuting witness’ head. In our view, testimony such as this brought into issue the question of whether appellant acted in self-defense. It follows therefore under the facts in this case the jury should have had the benefit of this excluded testimony on the question of who was the probable aggressor.

Reversed.

Holt J., disqualified.

Dissenting opinion on denial of petition for rehearing delivered March 18,1963.

Paul Ward, Associate Justice.

The majority has denied the petition for a rehearing in this case. Although J helped to make the original opinion, I am now convinced it was wrong and that the petition for a rehearing should be granted. My reasons for this change in position are set out hereafter.

One. The opinion (236 Ark. 91 at pages 92, 93) sets out as the first error the refusal of the court to allow appellant to tell the condition of his wounds. This assignment cannot be considered by us because no exceptions were saved. In the Criner case (236 Ark. 220) which we handed down on March 4, 1963 we refused to reverse for the reason no exceptions were saved. Also, in addition, the court allowed Baker (appellant) to make a record of what his testimony would have been. It was ‘ ‘ that he received a serious injury, cut several inches long on top of his head ...” This same testimony was later placed in the record by Dr. Clark as will be shown later.

Two. The next excluded testimony relied on for a reversal is set out in the opinion on pp. 93 and 94. In this instance an exception was saved by appellant. I submit there are two good reasons why no reversal error was committed.

(a) Appellant was again allowed to make a record of what his testimony would be if allowed to answer the questions propounded to him. Here it is: “. .. Dr. Clark examined his injuries and sutured the wound in his head and that it took eleven stitches to sew up the wound. ’ ’ As will be shown later, Dr. Clark’s testimony was substantially to the same effect.

(b) Aside from what is said in (a), there is another reason why the court did not commit reversible error. Appellant never did, during the entire trial, tell the trial court why he thought the excluded testimony was admissible. Only on appeal did appellant contend the testimony was admissible to show the probable aggressor. It is not fair to the trial court (as we have said many times) to let him be trapped into error — if it was error.

The record at pages 269 et seq shows the testimony of Dr. LeMon Clark which was allowed to go to the jury. At page 270 it shows that the court first refused to let Dr. Clark testify, but following that Dr. Clark did testify in substance, regarding appellant’s wounds, as follows:

I was concerned with the laceration on his scalp; it went right straight back almost in the middle of his skull; it was 3 or 3% inches long; it went right down to the skull — to the bone; it was lying open; it was almost as though it had been cut with a knife.

At page 272 of the record the doctor said he sutured the cut with seven stitches. The doctor goes on at great length to describe the condition of appellant — much more than appellant had said he would do.

In all fairness to the trial court (and to the continuity of the law) I submit the petition for a rehearing should be granted.


author: Prank Holt, Associate Justice.

text:
    Sullivant v. Sullivant.
    5-2836
    364 S. W. 2d 665
    Opinion delivered February 11, 1963.

      Levine & Williams, for appellant.

      Joe W. McCoy and Cole S Scott, for appellee.
   Prank Holt, Associate Justice.

This is ail appeal from the order of the Grant County Probate Court admitting the will of P. D. Sullivant to probate and dismissing the appellants ’ contest of the will.

Francis D. [P. D. or Bud] Sullivant, age 78, was found dead on the side of a road in Grant County, the county of his residence, on September 14, 1961. He was divorced and had no children. He was survived by three brothers, Austin, Raybon and Birt Sullivant, a sister, Della Lybrand, and two nephews, Carl and Earl Appling, the sons of a deceased sister [Jennie Appling] of Sullivant.

On September 16, 1961, a petition for the appointment of an administrator was filed by Austin Sullivant. All of the above named heirs, except Birt Sullivant, joined in this petition. The petition was granted on September 18, 1961, in an order appointing the National Bank of Commerce of Pine Bluff, Arkansas, as administrator and issuing Letters of Administration to said bank as administrator of the estate.

On December 8, 1961, the Probate Court [after a two-day trial, December 5 and 6] rendered its Order and Judgment wherein the court admitted to probate the questioned will; denied and dismissed the appellants’ petition challenging the validity of the will; appointed Birt Sullivant executor; removed the aforesaid bank as administrator and cancelled the Letters of Administration previously issued to the bank as administrator of the estate. The appellants appeal from this Order.

On appeal, this cause comes here de novo and this court will affirm unless the order of the Probate Court is against the preponderance of the evidence. Parette v. Ivey, 209 Ark. 364, 190 S. W. 2d 441.

Appellants’ first point for reversal includes questions concerning the making and proof of the will: No will was introduced in evidence; there is no will in the record; and the proponent failed to prove by competent testimony the execution of the will of P. D. Sullivant.

A study of the record in this case reveals that the will in question and proof of will were properly filed, together with the petition for probate thereof, on September 22, 1961. On the same date the record recites that the court entered an order in which the said will is referred to in these words:£i * * * on this date Birt Sullivant presented to the court a will, proof of will attached to a petition for admission thereof to probate * * * ” In this order the court granted the appellants sufficient time to file any pleadings desired to contest the will and set the case for trial.

At the trial the two attesting witnesses to the will testified in support of the validity of the will. James C. Cole, the attorney who drafted and witnessed the will testified in part:

“Q. In the file here it is filed what proposes to be the last will and testament of F. D. Sullivant. Is that your signature on that?
A. Yes sir. That is my signature.”

Lois Green, legal secretary who typed and witnessed the will, testified in part:

‘ ‘ Q. I hand you what proposes to be the last will and testament of Mr. Sullivant. Is that your signature?
A. Yes sir, it is.
Q. This will was dated October 11, 1960. Were you a member of Cole and Scott at that time?
A. Yes sir.
Q. This is your signature?
A. Yes sir.
* *
Q. I notice in this will that you and Mr. Cole initialed the first page of it. * * * Is that your initial?
A. Yes sir, I did.”

Also, in the final Order from which comes this appeal, the court found, among other things, that:

‘ ‘ The decedent left as his last will and testament an instrument dated the 11th day of October, 1960, and due and proper proof of the execution and publication thereof in the manner required by law has been made. The decedent, at the time the will was made, was of sound and disposing mind and memory and executed same as his own free will and act and not as a result of coercion, fraud or undue influence. Said will is entitled to be admitted to Probate as the last will and testament of the decedent * * * . IT IS FURTHER CONSIDERED, ORDERED AND ADJUDGED that the instrument dated the 11th day of October, 1960, tendered to this court as the last will and testament of the decedent, should be and is hereby admitted to probate as such * * * .”

The record also reflects that a copy of said will is included in the record. The two attesting witnesses, James C. Cole and Lois Green, presented proper and sufficient proof of the will in compliance with Ark. Stats. §§ 60-403 and 62-2117. We find the questioned will was presented to and examined by the court, and further, was admitted to probate and made a part of the record in this case.

As a part of Point One the appellants also urge for reversal that the proponent of the will failed to prove by competent testimony the execution of the will by F. D. Sullivant. They assail the competency of the testimony of James C. Cole as being based upon privileged communication since Mr. Cole drafted and witnessed the will. Mr. Cole’s testimony was proper and competent. Bradway v. Thompson, 139 Ark. 542, 214 S. W. 27; Peoples National Bank v. Cohn, 194 Ark. 1098, 110 S. W. 2d 42. Also, Mr. Cole’s testimony is challenged since he was employed by the proponent of the will to represent the estate. When the will contest developed, although Mr. Cole continued as an attorney of record, another attorney, Joe W. McCoy, was also employed who tried the case chiefly in the Probate Court and presented the case on oral argument before this court. In Rosenbaum v. Cahn, 234 Ark. 290, 351 S. W. 2d 857, we held to be qualified, as an attesting witness, the attorney who also drafted the will and was named therein as attorney for the estate. In the ease at bar, Mr. Cole drafted the will and was not named in the will in any manner. Since Mr. Cole was not named in the will as a beneficiary or otherwise, we hold Mr. Cole was qualified to testify as an attesting witness under Ark. Stat. § 60-402 (c).

Appellants7 second and remaining point for reversal includes the contention that F. D. Sullivant was not competent to make a will and that the will was procured by fraud and undue influence.

The burden of proving mental incompetency, undue influence or fraud which will defeat a will is. on the party contesting it: Werbe v. Holt, 218 Ark. 476, 237 S. W. 2d 478; Walsh v. Fairhead, 215 Ark. 218, 219 S. W. 2d 941; McWilliams v. Neill, 202 Ark. 1087, 155 S. W. 2d 344; Smith v. Boswell, 93 Ark. 66, 124 S. W. 264.

Appellants attempt to shift this burden of proof to the proponent of the will by relying on the rule in Orr v. Love, 225 Ark. 505, 283 S. W. 2d 667. There this court said;

“When it is shown that the will is drawn or procured by a beneficiary, there is a presumption of undue influence * * * . It is incumbent on those, who, in such a case, seek to establish the will, to show beyond reasonable doubt, that the testator had both such mental capacity, and such freedom of will and action, as are requisite to render a will legally valid."

In that case the testatrix made four wills in less than a month. The proponent of the last will, the daughter-in-law, was one of the principal beneficiaries who had her own lawyer prepare the will according to her individual instructions and contrary to the terms of the first will. In the case at bar it is true that Birt Sullivant is the sole beneficiary and that he, his wife, Minnie, and son, Sidney, accompanied F. D. Sullivant to Mr. Cole’s office on October 11,1960, when the will was drafted. However, Mr. Cole was already representing F. D. Sullivant on two matters and had never represented Birt Sullivant. The will was drafted according to the explicit directions of F. D. Sullivant without any prompting or instructions from Birt or his family. F. D. paid for the will himself. These facts are not sufficient to shift the burden of proof to the proponent in this case.

We proceed now to a discussion and decision on the question of whether appellants have shown circumstances which preponderate in favor of a finding of mental incompetency, fraud or undue influence. We find no evidence of fraud in this case.

The questions of mental competency and undue influence are so closely related and interwoven that we treat them together. Parette v. Ivey, supra; Brown v. Emerson, 205 Ark. 735, 170 S. W. 2d 1019; Phillips v. Jones, 179 Ark. 877, 18 S. W. 2d 352.

Numerous witnesses appeared for appellants and appellee at the trial of this cause. Lay witnesses, such as neighbors and acquaintances of the decedent, appeared on behalf of appellants. The testimony of these witnesses most favorable to the appellants can be summarized thusly: One witness testified that at times F. D. was all right but at times he had “spells” but she never witnessed these “spells”, also, that in her opinion he was not capable of managing his own affairs; another witness testified that she didn’t think F. D. was crazy but his mind wasn’t right at times; another witness testified that in her opinion “he was very incompetent” and he needed Christian fellowship; another testified that when he saw F. D. in April, 1961, he was irrational in his actions and speech and that he was not as alert in September, 1961; another expressed the opinion that F. D. ’s mind was bad; another, that he had bad eyesight but no other disabilities; another, he needed medical and spiritual attention and a better diet.

Mrs. B. L. Boss, a tax consultant, testified on behalf of appellants that F. D. Sullivant visited her office on several occasions with reference to tax matters and he seemed confused in his thinking; that he expressed intense dislike for most of his relatives, especially Birt and his family. Mrs. Boss testified about and exhibited a signed document she said she formulated and typed up at F. D. ’s request on April 19, 1960. This instrument is captioned “Facts I Want To Make Known While My Sister, Jennie Appling, Is Alive And Before My Memory and Eyesight Get Any Worse.” The document recites that he did not believe in wills and would never sign a will as long as he lived, had his right mind and knew what he was doing. Mrs. Boss testified that subsequently, on one of his last visits, she said to him, “Mr. Bud, one time you said you hated Mr. Birt as bad as you hate Mr. Austin,” and he said, “Yes, but we patched up our business.”

Eaybon Sullivant, a brother toward whom F. B. had no animosity, testified that he visited with F. B. six or seven times the last two years of his life and he saw him ten days before his death. He stated that the ill relationship between F. B. and Birt began to change for the better about April, 1960. He testified that since 1958 Bud’s mind and body seemed to have deteriorated faster and that Bud couldn’t remember things well; that he had a persecution complex and a confused mind. He testified that after their sister, Jennie Appling, died in June, 1960, Bud went all to pieces and “lost his cradle of support. ’ ’

- ■ We now proceed to examine the testimony presented on behalf of appellee, Birt Sullivant, in proving the validity of the will. Appellants object to such testimony on the basis that these witnesses did not have adequate opportunity to observe the manner, habits and conduct of F. B. Sullivant. We find no merit in this contention.

There was medical testimony from several witnesses that F. B. was capable of transacting business. The most persuasive medical evidence is that given by Dr. Arthur Fowler, Jr., who observed him almost twice daily as his patient when F. D. was in the Jefferson Memorial Hospital at Pine Bluff, Arkansas from September 27, 1960 until October 4, 1960. His complaint, at this time, referred to pain in his knees, his back, and a cough. Dr. Fowler gave as his opinion that F. D. Sullivant was in good general condition for a man of his age (77); that he was mentally alert and that in his opinion he was capable of transacting business. F. D. also told him he was going to make a will which he did a few days later on October 11, 1960.

There is testimony from bank officials with whom F. D. had business transactions that they considered him capable to transact his own business. Other witnesses testified in support of validity of the will but we do not deem it necessary to detail such. ,

No witness for contestants or contestee testified as to F. D. Sullivant’s mental capacity on October 11, 1960, the date the will was executed, except Mr. Cole who drafted and witnessed the will and his legal secretary, Lois Oreen, who typed and witnessed the will. Both testified that F. D. Sullivant was mentally competent and gave definite instructions as to the contents of the desired will without prompting or participation by anyone. He asked if he had to leave the heirs not getting anything a dollar; he heard the will dictated; the will was read to him after it was typed; he paid $15.00 and asked for a receipt after the will was signed.

During the discussion about the desired contents of the will, F. D. related that he and his brother Austin had not visited with each other in twenty-five years; however, that it hadn’t been that long since he and his sister, Mrs. J. W. (Della) Lybrand, had visited each other. Also, F. D. stated that they [Austin and Della] had “done so dirty”, by trying to lock him up, and he appeared “as mad as a wet hen. ’ ’ This attitude seems to stem from the filing of a petition on September 23, 1960, signed by Austin Sullivant and Mrs. J. W. (Della) Lybrand, seeking to commit him to the State Hospital. This action appears to have been prompted by F. D. ’s alleged show of violence and threats toward the wife of a nephew, Carl Appling, when she went to visit him on September 14, 1960. A warrant was issued thereon. The fifth paragraph of his will reads as follows:

‘ ‘ FIFTH: By way of explanation, I am aware that I have other brothers and sisters but due to personal relationships and the absence of personal relationships over a period of the last several years, I am intentionally omitting leaving anything to them in this will. ’ ’

The general consensus of all the testimony in this case is that F. D. Sullivant was characterized as a recluse and miser with many eccentricities and loved money, it seemed, to the exclusion of anything else.

In Parette v. Ivey, supra, we find the following cogent language which is most applicable to this case and we quote at length:

“ * * * As was said by this court in Puryear v. Puryear, 192 Ark. 692, 94 S. W. 2d 695: ‘It is elementary that, subject to statutory restrictions, every person of sound mind and disposing memory has the untrammeled right to dispose of his property by will as he pleases, however capricious and unjust such disposition may appear to be. Sound mind and disposing memory constitutes testamentary capacity which is said to be the ability of the testator to retain in memory without prompting the extent and condition of the property to be disposed of, to comprehend to whom he is giving it, and to realize the deserts and relations to him of those whom he excludes from the will. Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405. This definition presupposes a mental capacity sufficient to execute a will free from undue influence. Tobin v. Jenkins, 29 Ark. 151. With respect to the ability to know the extent and condition of the property to be disposed of and to whom it is being given, and to appreciate the deserts and relations to the testator of others against whom he discriminates or excludes from participation in his estate, it is unnecessary that he actually has this knowledge. It is sufficient if he has the mental capacity to understand the effect of his will as executed. “Capacity to understand the effect of making one’s will, and not actual understanding, is the test of mental capacity required of the testator.” Huffaker v. Beers, 95 Ark. 158, 128 S. W. 1040; Emerich v. Arendt, 179 Ark. 186, 14 S. W. 2d 547,’ and in one of our early cases on the subject, McCulloch v. Campbell, 49 Ark. 367, 5 S. W. 690, this court held: (Headnote 2) ‘The infirmities of age and even a partial eclipse of the mind, will not prevent a person from making a valid testament if he can retain in his memory, without prompting, the extent and condition of his property, and understands to whom he is giving it and is capable of appreciating the relations to him and merits of others whom he excludes from any participation in his estate, ’ and on the question of undue influence, (Headnote 1) ‘The undue influence which avoids a will is not the influence which springs from natural affection, or is acquired by kind offices, but it is such as results from fear, coercion, or any other cause that deprives the testator of his free agency in the disposition of his property. And it must be directly connected with the execution of the will and specially directed towards the object of procuring a will in favor of particular parties.’

See, also, Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405, wherein this court said: ‘Testators are not required by law to mete out equal and exact justice to all expectant relations in the disposition of their estates by will, and the motives of partiality, affection, or resentment, by which they naturally may be influenced, are not subject to examination and review by the courts. Barricklow v. Stewart, 163 Ind. 438, 72 N. E. 128; Clapp v. Fullerton, 34 N. Y. 190, 90 Am. Dec. 681. If one has the capacity indicated to make a will then he may make it as “ eccentric, injudicious and unjust as caprice, frivolity or revenge can dictate. ” ’ ” [Citations omitted]

From all of the testimony we are unable to say that the findings of mental competency and lack of undue influence, by the Probate Court, were against the preponderance of the evidence. The decree is therefore affirmed.

Harris, C. J., not participating.

       A pending criminal charge based on a warrant issued because of alleged threats and show of violence to the wife of his nephew, Carl Appling, on September 14, 1960. Also, a pending petition, signed by Austin Sullivant and Mrs. J. W. Lybrand, brother and sister of J. D., to commit him to the State Hospital. This petition was filed on September 23, 1960.