author: J. Fred Jones, Justice.

text:
    Richard Neal WILLIAMS v. STATE of Arkansas
    5556
    467 S. W. 2d 740
    Opinion delivered June 7, 1971

      H. Allan Dishongh and James L. Sloan, for appellant.

      Ray Thornton, Attorney General; Milton Lueken, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

Richard Neal Williams was convicted of first degree murder in the Hempstead County Circuit Court and sentenced to life in the Arkansas Penitentiary. On appeal to this court he relies on the following points for reversal:

“I. The circuit court abused its discretion in admitting State’s Exhibit 33 insofar as it consisted of a collection of contraceptive rubbers.
II. The circuit court erred in receiving in evidence State’s Exhibit 36, the bloody panties of Carolyn Cassidy.
III. There was no legitimate ground for letting in State’s Exhibit 39, a letter of ‘Jeannie Day.’
IV. Under the circumstances the Black Orchid Club card was more prejudicial than relevant.
V. State’s Exhibit 3 and 4, the photographs of the corpses, were gruesome, morbid, and shocking in the extreme, but barely relevant if at all. They should have been excluded.
VI. It was the duty of the circuit court to instruct the jury as to the limited purposes for which the evidence of other crimes could be considered.
VII. A manslaughter instruction should have been given.
VIII. Severe prejudice resulted from the circuit court’s omission of an instruction on the effect of drunkenness.”

The revolting facts of this case are not greatly in dispute except as to details; and as to whether the 15 year old defendant, Williams, or his 12 year old female companion, Carolyn Cassidy, fired the shots that killed her mother, Lou Dean Cassidy, and her mother’s companion and paramour, Paul Parsons.

On Monday morning, March 30, 1970, the bodies of Parsons and Mrs. Cassidy were found within about four feet of each other beside a dirt and gravel road near Nashville in Hempstead County. Parsons had been shot through the right eye and Mrs. Cassidy had been shot through the left eye. Both bodies appeared to have been dragged feet first a short distance from some automobile tracks in the road to where the bodies were found. About the same time the bodies were discovered, Williams was apprehended while driving Parsons’ automobile near Mt. Pleasant, Texas.

The undisputed background facts as gleaned from the testimony of Carolyn as well as that of Williams, appear as follows: Parsons was 40 years of age (according to his driver’s license) and Williams was 15 years of age and they both lived at Delight, Arkansas. Williams knew and liked Parsons, but had been warned by his mother against associating with him. On Sunday evening, March 29, 1970, Williams had planned to go fox hunting with some young friends but the plans miscarried and he came upon Parsons parked in his automobile at his favorite parking place on a street in Delight. In the course of conversation Parsons told Williams that he had a .22 caliber pistol that had been misfiring and Williams suggested that he might be able to fix it. They drove to Parsons’ home where they obtained the pistol, then drove to a lumber company building where Williams fired the pistol several times and where they drank some wine furnished by Parsons. After driving around and drinking some beer, Parsons suggested that they drive to Nashville where he knew a woman he could have a date with and Williams agreed to go along. Upon arrival at Nashville, they drove to the Cassidy home where Lou Dean Cassidy got into the automobile with them. They drove around Nashville for a short period of time and then returned to the Cassidy home where they picked up Mrs. Cassidy’s 12 year old daughter, Carolyn Susan Cassidy.

Parsons had placed the pistol under the front seat of the automobile and after Mrs. Cassidy and her daughter got into the automobile, they drove to a drive-in cafe where they purchased some cokes; and with Williams and Carolyn in the rear seat, and with Mrs. Cassidy beside him in the front seat, Parsons drove out into the country about 9:30 P.M. and parked the automobile on a dirt and gravel road. Parsons obtained a bottle of whisky from the trunk of the automobile and he and Mrs. Cassidy and Williams drank some whisky mixed with cokes. Parsons and Mrs. Cassidy then got into the rear seat of the automobile and Williams and Carolyn got into the front seat. Parsons and Mrs. Cassidy had sexual relations in the back seat but Carolyn refused to have sexual relations with Williams in the front seat. From this point on Carolyn and Williams differ in their versions of the events that transpired.

Carolyn testified that after her repeated refusals to have sexual relations with Williams, her mother as well as Parsons told Williams to leave her alone. She says Williams started crying and talking about a girl who had refused to marry him. She says that he got out of the automobile, fell to the ground, and complained that something was wrong with his legs and that he could not walk. She says that she got into the back seat of the automobile and her mother and Parsons picked Williams up from the ground and laid him on the front seat of the automobile. She says that her mother then put a handkerchief in Williams’ mouth to keep him from biting his tongue. She says that she was sitting on the left side of the back seat next to her mother, who was then sitting next to Parsons and partially on his lap. She admits that she was turning the dome light on in the car and that Parsons was insisting that she leave it off. She says that after Williams had lain on the front seat for about 20 minutes, he sat up, pulled her toward him, and demanded that she get back into the front seat with him. She says that when she refused, Williams showed her a pistol which he held in his hand and told her that if she did not get into the front seat with him he would kill her and her mother. She says that she told her mother what Williams had said but that her mother didn’t believe her. She says that her mother suggested to Williams that he turn the car radio on and that after attempting to do so, Williams told Parsons that the radio was broken and he should get it fixed. She says that Parsons answered that he would get it fixed the following day and that Williams told him he would not live long enough to get it fixed. She says Williams then shot Parsons in the face with the pistol; that Parsons fell over on her mother and that Williams then turned the pistol on her mother. She says that her mother said “please don’t shoot me,” but that Williams shot her mother. She says that Williams then demanded that she get into the front seat with him and that she did so. She says that when she moved from her position in the back seat, her mother fell over toward the left door. She says that Williams then removed all her clothing, except her brassiere, and that he jerked it from her body and that he then raped her. She says that after Williams raped her, he forced her to commit an act of sodomy and then ordered her to get dressed. She says that she put her clothes back on, except the brassiere which she threw out of the car, and that after Williams got dressed, he first dragged Parsons’ body out of the car by the legs and then dragged her mother’s body from the car in like manner. She says that Williams then removed articles, including her mother’s panties and shoes, from the car and threw them near the bodies; that he then cut the bloody seat covers from the rear seat of the automobile with his pocket knife and threw the seat covers and a bloody floor mat on the ground near the bodies. She testified that Williams then drove the car forward and turned it around; that he then drove back slowly past the bodies to the main highway and then drove south toward Texarkana. She says that Williams ordered her to take everything out of the glove compartment and examine for Parsons’ name. She says he made her throw Parsons’ wallet out of the car but that Williams altered Parsons’ driver’s license and kept it. She says that Williams did not drive through Texarkana but after driving around Texarkana, he stopped near a lake where he fired the pistol out of the automobile window to show her it would still shoot, and that after raping her again he drove on toward Redwater, Texas. She says that they stopped for gas and that Williams left without paying for the gas after telling the attendant that he had been in a fight in order to explain the blood in the car. She says that when they reached Maud, Texas, Williams told her he did not want her with him in the event he should be stopped by police; that he gave her 15 cents with which to place a collect phone call to her uncle in Mineral Springs, Arkansas, and that after admonishing her to say she didn’t know anything if questioned by the police, he then let her out of the automobile. She testified that she went to a nearby washateria where she reported what had happened; called her uncle collect and was soon picked up by police officers.

Officer David Ward, who apprehended Williams in Mt. Pleasant, Texas, testified that he was in Mt. Pleasant when he received a radio call describing an automobile which had left a filling station without paying for gas; that he was parked on the side of the highway waiting for the automobile when it arrived at about 80 miles an hour. He testified that he pursued the automobile and it failed to slow down or stop when he turned his red lights on. He says that he then turned on his siren and the automobile stopped at one of the turn-throughs at a highway intersection. He says that as he approached the automobile, the door opened and he saw a pistol in the armrest inside the door and that he took possession of it. He testified that Williams was driving the automobile and that before he had said anything to him, Williams said, “My God man, help me, I’ve just murdered two people.” He says that Williams then told him that he had been with a girl and that she had forced him to shoot two people.

Mr. George Oosterhous, special agent for the FBI, testified that he interviewed Williams at the office of the chief of police in Mt. Pleasant, Texas, about 1:30 p.m. on March 30. His testimony was to the effect that Williams related to him that Carolyn took a gun from under the front seat of the automobile and shot Parsons outside the car and then shot her mother; that she forced him to drag Mrs. Cassidy’s body from the car and then told him to leave the area; that she stated she would kill him if he tried to escape and that they drove for several hours while Carolyn was holding a gun on him. He says that Williams told him that at some time about midnight, Carolyn forced him to stop and have sexual relations with her; and that Williams stated that after this happened he was completely exhausted and went to sleep; that when he awoke it was nearly morning; that he did not know where he was but that he continued driving; that Carolyn told him to pull into a filling station and have the tank filled and then speed away which he did; that they continued to drive for about one-half hour when he finally talked Carolyn into letting him go, and that she asked to be let out at Maud, Texas. He says that Williams told him that after Carolyn let him go, he began searching for a law officer so that he could report what had happened during that long evening, and that he was finally able to find an officer at the Mt. Pleasant Police Station. He says that Williams told him that as they left Nashville, Carolyn made some excuse to go back into the house and that she brought out a pistol and put it under the front seat of Parsons’ automobile.

Mr. Sam Johnson testified that on March 30 about 6:00 a.m. he started to a nearby hay field and found the two bodies at the side of a gravel road at a place called Propps Creek; that after determining that the bodies were dead, he immediately called the sheriff.

Captain Milton Mosier, of the Arkansas State Police, testified that he arrived at the scene of the crime about 7:20 a.m. on March 30. He says that the two bodies were lying on the righthand side of the road partially in the ditch. He says that the bodies were lying side by side about four feet apart with their arms outstretched above their heads and with their heads and hands partially in the road and with their feet resting in the ditch and on the shoulder of the road. He testified that Parsons’ shirt was unbuttoned and that he had on a T-shirt under his other shirt. He says that Parsons had mud on the T-shirt and under his belt; that Parsons had his socks on and that one shoe was on and one off. He says that Parsons’ arms were over his head and his legs were pretty straight out. He testified that marks on the road indicated that Parsons’ body had been dragged to where it was lying. He testified that Mrs. Cassidy’s dress was bloody and up around her waist; that there was a brassier on the body and that another brassiere was found at the scene. He testified that a pair of lady’s panties were found hanging on some briers near the bodies; that Mrs. Cassidy’s body was lying on its back with the feet outstretched and that the body was naked from the waist down. He says that Mrs. Cassidy’s shoes were off and lying beside her body; that there was a pocket of blood under her left eye and that there was blood on her face and dress. He testified that the body had been dragged to where it was lying.

On cross-examination this witness testified that Parsons’ body was lying flat on its back with his face up and that Mrs. Cassidy’s body was lying about four feet from Parsons’ body with her face turned toward her left. He says that a ridge of dirt had washed down the hill filling the ditch where the bodies were found, and that the bodies had been dragged through the ridge of dirt. He testified that there was at least an inch of dirt wedged under Parsons’ belt. He says that the ground where the bodies were found was damp and that Parsons’ shirt was pulled out and up around his waist. He says the shirt was clean up under the arms but there was mud on the shirt up between the shoulders. He says there was mud on the left hip and side of Mrs. Cassidy but that her shoes were free of mud. He testified there was no indication of movement of the bodies while they were on the ground.

Dr. Rodney Carlton, state medical examiner, testified that Parsons was shot through the right eye and the brain, and that Mrs. Cassidy was shot through the left eye and the brain. He removed the bullets later identified as having been fired from Parsons’ gun.

Sergeant Carroll Page of the Arkansas State Police testified that he interviewed Williams at Mt. Pleasant, Texas, and that Williams told him practically the same story as testified to by the other officers. He testified that he examined the automobile and that there was a lot of blood under the cushion in the righthand corner and in the center of the back seat.

Williams testified in his own defense and his version of what took place at the scene of the crime and subsequent thereto, differs considerably from Carolyn’s version. Williams readily admitted that he tried to persuade Carolyn into sexual relations with him while her mother and Parsons were so engaged in the rear seat of the automobile, but he says he gave up when she refused. He denied that anyone told him to leave Carolyn alone and he denied that he fell outside the automobile and that Parsons and Mrs. Cassidy placed him in the front seat. He denied that he had sexual relations with Carolyn at all, and he denied giving the police any different version than that to which he testified. Williams testified that Carolyn kept turning the dome light on in the automobile and that Parsons told her in a rough manner to turn it off and leave it turned off. He says that Parsons then stepped out of the automobile “to use the bathroom” and that Carolyn stepped out of the automobile also. He says he heard a gunshot and that Carolyn then pointed the gun into the car at her mother. He says that Mrs. Cassidy exclaimed, “What are you doing with that gun! Give it to me,” and as she reached toward the gun, Carolyn shot her mother. He says that Carolyn then ordered him to drag Mrs. Cassidy’s body from the automobile and that he did so by holding her under the arms. He says that he laid the body beside the road and that Carolyn then handed him his own knife and ordered him to remove the bloody seat covers from the car which he did. He says that she then ordered him at gunpoint to drive toward Texas. He says that sometime in the morning hours he became completely exhausted and pulled the automobile over to the side of the road and stopped. He says that when he stopped Carolyn said, “come here” and as he scooted over toward her, he passed out and didn’t awake until 5 o’clock in the morning. He says that as soon as he awoke, Carolyn said “Let’s go.” He says that when they stopped for gas Carolyn ordered him to leave without paying for it. He says that she released and left him at Maud, Texas, and told him not to try contacting the police. He testified that prior to his release he had been driving about 80 miles per hour hoping that he would be stopped by police for speeding, and that after Carolyn left him at Maud, Texas, he continued driving at about 75 or 80 miles per hour in search of a police officer or a house where he could report what had happened. He testified that as he was entering Mt. Pleasant, Texas, he saw a police car and was slowing down to stop when the police car overtook him. He says that he said to the police officer, “My God, man, help me. I think I just helped kill two people.” He testified that he was quite sure Mrs. Cassidy was dead when he removed her body from the automobile, but that he thought Parsons might still be alive. According to Williams’ version, he was anxious to tell his story to the police officers so they could catch the girl.

Williams is represented on this appeal by different attorneys from the one who represented him at the trial. On oral argument they contend that under Act 333 of 1971 we are required to search the record for any error by the trial court, whether called to the trial court’s attention by objections made and saved or not; and that we should only concern ourselves with whether Williams received a fair and impartial trial. Act 333 is entitled: “AN ACT to Simplify the Procedure for Appeals From the Circuit Courts to the Supreme Court of Arkansas in Criminal Cases; and for Other Purposes.” Section 11 of the Act is the one most emphasized in oral argument and is as follows:

“Matters to be Considered on Appeal. The Supreme Court need only review those matters briefed and argued by the appellant provided that where either a sentence for life imprisonment or death, the Supreme Court shall review all errors prejudicial to the rights of the appellant.”

Act 333 became effective on March 22, 1971, approximately nine months after Williams was tried, but Williams’ attorneys argue that § 11 of the Act is procedural as applied to cases on appeal to this court and is retroactive to cases tried prior to the effective date of the Act. We do not pass on the application of Act 333 to the case at bar, for the reason that due to Williams’ tender age; and due to the absence of evidence of prior offenses or criminal tendencies, we have examined the record without regard to exceptions, and we find no reversible error therein.

The purpose of a criminal trial is to determine the guilt or innocence of the accused, and the primary function of a jury is to determine whether the accused did or did not commit the crime with which he is accused. A jury panel is composed of adult citizens and a fair and impartial jury is selected in a given case by the process of elimination through peremptory challenges and challenges for cause. A jury is charged with the responsibility and sworn duty to acquit an accused if found innocent, and to convict and fix punishment within the bounds of the law when the accused is found guilty. The burden rests on the state to prove the accused guilty beyond a reasonable doubt. As a practical matter, when the accused is found guilty, a jury may, and does, consider mitigating circumstances in assessing the penalty within the range fixed by law for the offense.

Under The evidence in the case at bar the jury had to choose between Carolyn’s version and Williams’ version of what occurred at the scene of the crime. The jury apparently believed Carolyn’s version rather than Williams’ and returned a verdict of guilty of murder in the first degree. There is no indication in the record before us that the jury’s task in reaching its verdict, was not as unpleasant as is our own in affirming it.

We have not attempted to retry this case under the different trial strategies the separate members of this court might have adopted had we been representing Williams; consequently, we have not examined the record for every possible objection that might have been made to the evidence that was submitted at the trial; and we have not attempted to weigh the effects such possible objections might have had on the verdict of the jury if they had been made and sustained or overruled. We have, however, concerned ourselves with whether Williams received a fair trial and we are of the opinion that he did.

It was the state’s theory that Williams killed Parsons and Mrs. Cassidy in order to force sexual relations on Carolyn without interference from her mother or Parsons. We now proceed to the errors assigned by Williams in the points he relies on and in the order they are presented.

As to Williams’ first point, Carolyn testified that the second time Williams raped her, he first attempted to use a contraceptive- rubber. The contraceptives introduced into evidence were admittedly taken by the officers from the glove compartment of Parsons’ automobile. There is no evidence that Carolyn knew they were in the automobile and the state had a right to introduce the exhibits in support of the credibility of Carolyn’s testimony that Williams twice raped her and in doing so, attempted to use a contraceptive device the second time. In Glover v. State, 194 Ark. 66, 105 S. W. 2d 82, we said:

“It is an accepted rule that a relevant fact will not be rejected because not sufficient in itself to establish the whole or any definite portion of a party’s connection, ‘but all that is required is that the fact must legitimately tend to prove some matter in issue, or to make a proposition in issue more or less probable. Indeed, it is sufficient if the fact may be expected to become relevant in connection with other facts, or if it forms a link in the chain of evidence necessary to support a party’s contention, although requiring other evidence to supplement it.’ 22 C. J. § 91, p. 164.”

Williams testified that the contraceptives belonged to Parsons and he denied that he attempted to use one. We find no prejudicial error in their acceptance in evidence.

The same rule applies to Williams’ second point. Carolyn testified that she got no blood on her clothing from her mother or Parsons. She testified that she was only 12 years of age; that she was raped twice, and that she had never experienced sexual intercourse before. Again this exhibit supported the credibility of Carolyn’s testimony that Williams raped her and in fact, supported the credibility of her testimony to the effect that Williams’ sexual lust was his motive for the crime of murder. The state had the right to offer the exhibit and Williams had a right to deny knowledge of the blood on Carolyn’s undergarment, or he had a right to attempt to explain it; he did both. He testified that he did not know how the blood got on the garment but that Carolyn could have been menstruating. Williams’ attorneys vigorously point out that no objections were made to the introduction of this exhibit, but we hold that the exhibit was admissible; therefore, if an objection had been made it should have been overruled.

Williams’ third point has to do with a vulgarly worded letter addressed to no one but simply beginning with the salutation “Hi.” This letter was picked up with other articles at the scene of the crime. The front of the one page letter complains that when the sender attempted to call, the intended recipient was always in Nashville cutting up cars. The front of the page concludes as follows: “By-by. P. S. Tell Wayne I said Hi. Carolyn said Hi! too.” Some vulgar language is written on the back of the page and is signed, “Love, Jeannie Day.” This letter was among other items apparently thrown out of the automobile at the scene of the crime, and it was not connected in any manner with Williams. There is no evidence that the letter was read to or by the jury, and if its contents could have reflected on the character of anyone involved, it could only have reflected on the character of the prosecuting witness, Carolyn Cassidy, by association; assuming of course t-hat she was the Carolyn referred to in the letter. There was no evidence that Williams was e-ver engaged in “cutting up cars” in Nashville or any where else. Both Carolyn and Williams testified that they were not acquainted with each other prior to the date of the homicides and if the acceptance of the letter in evidence was error, it was harmless error.

We are of the same opinion concerning the appellant’s fourth point. The Black Orchid Club card made out to Williams was found at the scene of the crime. It was irrelevant in the light of the testimony but it could not have prejudiced Williams. At the time of its introduction,-Williams- had not testified and the state had no way of knowing whether Williams would admit or deny that he was ever at the scene of the crime. It was explained in the testimony that the Black Orchid is a club in Hot Springs. Williams testified, that someone had given the card to his mother; that he had come into possession of it and had inserted his own name as member guest. His testimony was to the effect that he had exhibited the card to his young friends to impress them with his adult status and prestige. This exhibit could have only been some evidence that Williams was at the scene where the card was found, and this was admitted by Williams.

We likewise find no merit in Williams’ fifth point. The two pictures of the victims were first ruled inadmissible by the trial court in light of the investigating officers’ testimony as to the position of the bodies when found. The officers testified that both bodies had been dragged, feet first, to where they were found. Carolyn testified that Williams first dragged Parsons’ body and then her mother’s body from the automobile feet first. The officers testified that Williams had told them that Carolyn shot Parsons outside the automobile and that he only dragged Mrs. Cassidy’s body from- the automobile as ordered by Carolyn. The pictures were only admitted after this conflict in the testimony developed and they definitely supported the testimony, of Carolyn and the officers that both victims had been dragged to their positions feet first.

The admission and relevancy of photographs must necessarily rest largely in the discretion of the trial judge. Admissibility of photographs does not depend upon whether the objects they portray could be described in words, but rather on whether it would be useful to enable the witness better to describe and the jury better to understand, the testimony concerned. Where they are otherwise properly admitted, it is not a valid objection to the admissibility of photographs that they tend to prejudice the jury. Competent and material evidence should not be excluded merely because it may have a tendency to cause an influence beyond the strict limits for which it is admissible. Oliver v. State, 225 Ark. 809, 286 S. W. 2d 17; Smith v. State, 216 Ark. 1, 223 S. W. 2d 1011 (cert. den. 339 U. S. 916); Jones v. State, 213 Ark. 863 , 213 S. W. 2d 974.

Photographs are admissible for the purpose of describing and identifying the premises which were the scene of the crime, and may also be admitted to establish the corpus delicti of the crime charged, to disclose the environment and to corroborate testimony. Stewart v. State, 233 Ark. 458, 345 S. W. 2d 472 (cert. den. 368 U. S. 935).

We find no merit in Williams’ sixth point. There was no evidence submitted to the jury of previous crimes committed by Williams. As a matter of fact Williams testified that he had never been in trouble before except that he got one ticket for failure to have a driver’s license. His mother also testified that he had never been in trouble before and that he had always been a good boy. Williams also put his character in issue through a number of witnesses whose testimony was not impeached or even questioned. It developed from the oral argument on appeal that the “other crimes” referred to in the sixth assignment were the crimes of rape testified to by Carolyn, and the probable crimes of grand larceny and violation of the Dyer Act in connection with the automobile; and the probable crime of kidnapping and violation of the Mann Act in taking Carolyn across the state line of Arkansas and Texas. We find no merit in this argument. Williams was accused of first degree murder. Sexual intercourse with Carolyn against her will and without interference from her mother or Parsons was the only motive shown for the commission of the homicides. The other crimes, if they all were crimes, were incidental to crimes of murder, and Williams’ flight from the scene of the crimes with which he was charged and for which he was being tried

In Banks v. State, 187 Ark. 962, 63 S. W. 2d 518, the appellant was convicted of first degree murder in the killing of Mark Goodson. Mrs. May was with Mark Goodson and witnessed the homicide and so testified at the trial. She further testified. that after the murder the appellant then raped her. It was insisted on appeal that this evidence was inadmissible because the appellant was not on trial for the crime of rape. In rejecting the con-tendon this court said:

“It is always entirely proper for the State to show, if it can, motive for the commission of the crime, and the evidence of Mrs. May, in reference to appellant forcing her to have sexual intercourse with him was entirely proper for this purpose. We understand the rule to be that the fact that evidence introduced to prove the motive of the crime for which the accused is on trial points him out as guilty of an independent and totally dissimilar offense is not sufficient grounds upon which tó reject the testimony.
* * *
Moreover, the testimony of Mrs. May was competent for another reason, that is to say, if several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony, whether direct or circumstantial, of any one of them cannot be given without showing the others, evidence of any or all of them is admissible against a defendant on trial for any offense, which is itself a detail of the whole criminal scheme.” (Dunn v. State, 2 Ark. 229; Renfroe v. State, 84 Ark. 16, 104 S. W. 542).

Under the trial court’s instructions on first and second degree murder, there is no question that the jury knew that Williams was being tried on the charge of murder and not on other crimes incidental thereto. There is no evidence that the jury was not an intelligent one and capable of understanding the issues under the instructions given.

We likewise find no merit in Williams’ seventh point. Manslaughter is defined as the unlawful killing of a human being, without malice express or implied, and without deliberation. Ark. Stat. Ann. § 41-2207 (Repl. 1964). The appellant has correctly stated that voluntary manslaughter must be voluntary upon a sudden heat of passion, caused by a provocation, apparently sufficient to make the passion irresistible-. Ark. Stat. Ann. § 41-2208 (Repl. 1964). But, there was no such evidence in the case at bar. The only evidence in the record of provocation at all, is Carolyn’s testimony that her mother and Parsons told Williams to leave her alone. Williams denies this, but if he was provoked by such admonition, it fell far short of being legally sufficient for the creation of an irresistible passion to commit homicide in any degree. The jury was instructed on second degree murder as well as first degree, and it found Williams guilty of first degree murder.

It is well settled that in order to justify the court in giving an instruction on a lesser degree of homicide than that upon which the accused is being tried, there must be some substantial evidence to support such instruction. (Hearn v. State, 212 Ark. 360, 205 S. W. 2d 477).

In Walker v. State, 241 Ark. 300, 408 S. W. 2d 905, Walker was convicted of murder in the first degree. One of his assigned errors on appeal to this court was that the court refused to instruct the jury on manslaughter, and in that case we said:

“The court refused to grant appellant’s request for an instruction on manslaughter, and this ruling is assigned as error. The same circumstances were presented to this court in Outler v. State, 154 Ark. 598, 243 S. W. 851 (1922), where it was said: ‘At any rate, the verdict of the jury under this instruction (of first degree and second degree murder) necessarily implied a finding that the killing was not done under circumstances which would reduce the degree of the offense to manslaughter, and no prejudice resulted from the failure of the court to instruct on the subject of manslaughter.’ See Newsome v. State, 214 Ark. 48, 214 S. W. 2d 778 (1948), and also Talley v. State, 256 Ark. 911, 370 S. W. 2d 604 (1963), where again the refusal to instruct on manslaughter was considered harmless error in view of the fact that the appellant was found guilty of first or second degree murder.”

As to Williams’ last point, he would have known, perhaps better than anyone, whether he was drunk or sober. He did not interpose the defense of drunkenness in any degree, but in fact denied the implications that-he was under the influence of alcohol. If Williams was “crying drunk,” as argued in his brief, when Carolyn says he fell outside the automobile, his rapid recovery in the course of about 20 minutes, as also testified by Carolyn, would defy sound reasoning based on common knowledge. According to Carolyn’s version, there is no question that Williams had the presence of mind and physical ability to remove the body of Parsons as well as that of Mrs. Cassidy from the automobile; cut and remove the plastic seat cover as well as the blood stained floor mat from the rear of the automobile; remove the other articles that would tend to incriminate him if he should be apprehended in flight, even to the extent of altering the age of Parsons on his driver’s license with the intent (that could be logically assumed) of assuming Parsons’ identity if he found it convenient and necessary to do so. According to Williams’ own testimony, he did not fall outside the automobile and was perfectly aware of everything that took place, including his ability to follow Carolyn’s orders and instructions explicitly. The nearest Williams’ own evidence comes to indicating that he might have been under the influence of alcohol at all, was his testimony that he had no idea how Carolyn obtained possession of his knife when he says that she gave it to him and ordered him to cut the seat covers from the automobile.

In Newsome v. State, 214 Ark. 48, 214 S. W. 2d 778, the appellant was tried for first degree murder and convicted of murder in the second degree. The court instructed the jury on first degree murder, second degree and voluntary manslaughter. The appellant assigned as error the court’s refusal to instruct on involuntary manslaughter on the theory of intoxication. In that case this court said:

“In Weakley v. State, 168 Ark. 1087, 273 S. W. 374, Mr. Justice Wood, speaking for this court, quoted Bishop on Criminal Law: ‘The intention to drink may fully supply the place of malice aforethought so that,- if one voluntarily becomes -too drunk to know what he is about and then with a deadly weapon kills another, he does murder the same as if he were sober. In other words, the mere fact of drunke-nness will not reduce to manslaughter a homicide which would otherwise be murder.’ Bishop’s New Criminal Law, p. 296, § 401. See, also, Ballentine v. State, 198 Ark. 1037, 132 S. W. 2d 384, and other cases cited in West’s Arkansas Digest, ‘Homicide,’ § 28.
* * *
Furthermore, the verdict of guilty of murder in the second degree shows that the jury viewed the homicide as more than voluntary manslaughter. Any supposed error for failure to charge as to involuntary manslaughter was rendered harmless by the fact that the jury convicted Newsome of second degree murder. See Farris v. State, 54 Ark. 4, 14 S. W. 924; Nash v. State, 73 Ark. 399, 84 S. W. 497; Jones v. State, 102 Ark. 195, 143 S. W. 907; and Outler v. State, 154 Ark. 598, 243 S. W. 851.”

We- have no authority to determine whether Williams was guilty or innocent or to delve into possible reasons or motives for such heinous crimes. That was the duty of the jury who heard the evidence and observed the witnesses, including the appellant, as they testified. As much as we might wish we could do so, the trial judge and jury, as well as this court, are powerless to convert the stark reality of a senseless double homicide into merely a child’s bad dream. The sufficiency of the evidence to sustain the conviction is beyond question in this case, and we find no error, assigned or otherwise, that would legally require, logically permit, or morally justify us in reversing the judgment of the trial court.

The judgment is affirmed.

Byrd, J., concurs.


source: Caselaw Access Project

author: Conley Byrd, Justice.

license: Public Domain

text:
    William H. MOORE v. Alma M. MOORE
    5-5529
    467 S. W. 2d 732
    Opinion delivered June 7, 1971

      Burl C. Rotenberry, for appellant.

      Van H. Albertson, for appellee.
   Conley Byrd, Justice.

Appellant William H. Moore appeals from a Pulaski Chancery divorce decree awarding appellee Alma M. Moore possession of virtually all of the parties’ jointly owned real property. A prior action, in which appellee was awarded a divorce a mensa et thoro and possession of the parties’ 137 acre farm in Madison County, was before this court in Moore v. Moore, 241 Ark. 675, 409 S. W. 2d 830 (1966). Appellant thereafter moved to Little Rock and in due time filed suit for absolute divorce based on a three-year separation. For reversal of the Chancellor’s adjudication of property rights, appellant urges that “The court erred in awarding appellee exclusive use and possession of the parties’ jointly owned 137 acre farm together with all personal property located thereon while awarding appellant only the jointly owned two unimproved lots in New Mexico because of the grossly disparate value of the respective properties awarded each party.”

Reviewing the record, as we do on trial de novo, we find the evidence is sufficient to support the chancellor’s award.

When the parties married in 1949, appellee owned a home worth $9,000 and a bank account of $8,000. Appellant had no assets at that time. After their marriage, the parties moved several times, each time and place buying property and then selling when they moved elsewhere. Both parties worked steadily with substantially equal earnings until appellant suddenly retired in 1958, with a very small pension. Appellant has not worked since. After about 6 months, appellant prevailed on appellee to quit her job and they traveled for about two years. During that time they bought the two lots in New Mexico awarded appellant. Then they moved to Denver where appellee worked for two years while appellant drank to excess. Property they bought there was sold when appellant wanted to move to Florida in 1962. They got as far as St. Paul (Madison County), Arkansas, where they purchased the 137 acre farm on which appellee now lives. The parties assumed one mortgage when they purchased the property and obtained another mortgage with which they built a home on the property. Since 1965 appellee had made the mortgage and tax payments and maintained and improved the farm, either from farm earnings or outside employment when farming was. not profitable. All in all, we find nothing in the record to require us to disturb the chancellor’s decree.

Affirmed.


author: Frank Holt, Justice.

text:
    Shirley COWART, Adm’x v. Casey JONES, Contractor, Inc.
    5-5549
    467 S. W. 2d 710
    Opinion delivered June 7, 1971

      Carl Langston and Gene Worsham, for appellant.

      Cockrill, Laser, McGehee, Sharp ir Boswell, for appellee.
   Frank Holt, Justice.

The appellant brought this action against the appellee to recover damages for the death of Gerald Cowart, appellant’s husband, allegedly caused by the negligence of the appellee. The deceased was fatally injured when a crane, rented from appellee, struck the decedent and caused him to fall from a building under construction. When the appellant concluded the evidence in her case, the trial court directed a verdict for the appellee on the basis that the continued use of the crane by Bechtel (decedent’s employer), with the knowledge that it lacked certain safety devices, constituted a separate and intervening cause.

For reversal of the judgment appellant contends that the trial court erred in directing a verdict for the appellee, the lessor, because the crane was a dangerous instrumentality without the necessary safety devices and that the appellee, lessor, being a bailor for hire, owed a duty to furnish a safe appliance to those expected to use it and, further, that the appellee, lessor, is not relieved of liability even though the decedent’s employer was also negligent in continuing to use the dangerous instrumentality after detecting the dangerous condition.

The decedent, an iron worker, was part of a “raising gang” employed by Bechtel Corporation at a construction of facilities for Union Carbide Corporation. On the date of the accident, he and his crew were transferred by his superior to a “preheater building” from an adjoining building where they had been erecting steel with the use of a small crane. The decedent and his coworkers had not previously used the particular crane which was at the “preheater” site. This was a large, heavy-duty crane with a load capacity of 100 tons and a 170-foot boom. Decedent’s employer had two large cranes of this type, as well as smaller ones, on the job site. This large type crane was necessary at the “preheater” site because of the weight of the steel and the height required to set it in place. The fatal accident happened when the first steel column was raised by the crane and placed at the top of the “preheater” building. After decedent had unhooked his “choker” from the steel column, his co-worker had difficulty in disconnecting his side of the “choker.” Decedent assisted his coworker and when the “choker” was released, the “headache ball,” a steel ball weighing approximately fifty pounds and approximately fourteen inches in diameter, began spinning at a rapid rate with great force, knocking decedent from his position on top of the building and causing him to fall seventy-five feet to his death.

This crane, designed and customarily used for steel construction work at high elevations, was not equipped nor supplied with a non-spin swivel or a non-spin cable. Following the accident, a safety consultant for the Arkansas Labor Department investigated and testified that: “It didn’t have a swivel on it which would have prevented this (the accident).” He recommended “a non-rotating cable which tends to not twist up or swivel on this cable and they were putting that on there when I left.” According to him, the use of the swivel is “standard knowledge or standard procedure, it goes on there to prevent the cable from getting twisted up.”

The decedent’s co-worker testified that it is standard procedure that cranes of this type engaged in “hanging iron” be equipped both with a non-spin swivel and non-rotating cable. This witness denied any knowledge before the accident that the crane was not equipped with these two safety devices. According to him, this crane was very dangerous without this equipment. The decedent’s foreman testified that: “A swivel headache ball is standard equipment” and the swivel is an absolute necessity. Further, there was no tag line on the steel column being set. Another witness, an iron worker for 21 years, stated that in the absence of these devices this large crane, a utility rig used for heavy equipment such as “hanging iron,” was certainly “unsafe.”

The construction superintendent testified that this crane was multi-purpose in its nature and was used primarily for “setting structural steel” and “hanging iron;” that it was equipped with a long boom “to reach high places” in steel erection jobs; that the crane, rented from appellee, had been received from the appellee three to four weeks before the accident; that he and the particular crew which assembled this crane after its receipt were aware that it was not equipped with these safety devices. According to him, appellee was contacted about the lack of these safety features. He testified that he had used this and other cranes without the safety features and that this crane had not been used to set heavy iron, although it had been used every day to set “little stuff.” He testified that he had set the rig “in operation” knowing that it was not safety equipped and the foreman on the job knew the crane was not so equipped. Further, he stated that customarily a “tag line” was used to take the slack out of the line when the crane was not equipped with a swivel.

Appellant correctly states the rules of law which apply in determining whether a directed verdict is correct. In Shearer v. Morgan, 240 Ark. 616, 401 S. W. 2d 21 (1966) we said:

“It is the long-established rule of this court that, in determining the correctness of the trial court’s action in directing a verdict for either party, we must take that view of the evidence which is most favorable to the party against whom the verdict is directed; and, if there is any substantial evidence tending to establish an issue in favor of the party against whom the verdict is directed, it is error for the court to take the case from the jury.” [citing cases]

Also, in Harkrider v. Cox, 230 Ark. 155, 321 S. W. 2d 226 (1959) we said:

“The rule is well established that where fair-minded men might honestly differ as to the conclusions to be drawn from facts, whether controverted or uncontroverted, the question should go to the jury.”

Even though we hold, which we do not, as contended by appellant, that the crane was an inherently dangerous instrumentality and that the appellee was negligent in furnishing or supplying decedent’s employer with unsafe equipment, the appellant cannot prevail. This is true because, in directing a verdict for appellee, the court was correct in stating:

“The most important and persuasive reason why this court is directing a verdict for the defendant Casey Jones is that there can be no question, I rule as a matter of law that representatives in high capacity in Bechtel Corporation admittedly knew that this crane was received from whatever source without the safety devices. That they used it for a period of time.- * * * But in any event, charged with that knowledge, in my opinion the law is clear that there was a very definite intervening cause that we cannot attribute to Casey Jones.”

In Collier v. Citizens Coach Co., 251 Ark. 489, 330 S. W. 2d 74 (1959) we defined proximate cause as being:

"That which is a natural and continuous sequence, unbroken by any efficient intervening cause,- produces the injury, and without which the result would not have occurred.”

See, also, Hartsock v. Forsgren, Inc., 236 Ark. 167, 365 S. W. 2d 117 (1963); Pittsburg Reduction Co. v. Horton, 87 Ark. 576, 113 S. W. 647 (1908); AMI 503.

In the case at bar it is undisputed that the crane had been on the job site and out of the appellee lessor’s control for at least three to four weeks; that the crane was assembled on the job -site and operated by the decedent’s employer, during which time the appellee exercised no control over-the crane’s operation. Further, that decedent’s employer was aware during this three to four weeks of use that the two safety devices were not on this crane; that, knowing this, decedent’s employer directed him to work with or about this crane in the lifting of heavy structural steel which, according to the record, is the only time during the three to four weeks it had been so used; and that decedent’s employer admitted that it was customary, in the absence of these safety devices, to take “the back lay out of the cable” before it is sent up. In the circumstances we are of the view that the acts of decedent’s employer constituted an efficient, independent, and intervening proximate cause which superseded or broke the causal connection of the negligence, if any, of appellee.

Affirmed.

Byrd, J., concurs.


author: Frank Holt, Justice. John A. Fogleman, Justice,

text:
    DACUS CASKET COMPANY v. Mildred Louise HARDY
    5-5561
    467 S. W. 2d 713
    Opinion delivered June 7, 1971

      Jimason J. Daggett, for appellant.

      Rieves ir Rieves, for appellee.
   Frank Holt, Justice.

This is a workmen’s compensation case. Appellee fell and sustained a compensable back injury on January 26, 1968, while lifting a casket. After a spinal disc operation, she returned to work on June 24, 1968, and on February 6, 1969, sustained a second injury by a fall. A referee determined that as a result of the first injury, appellee had sustained a 15% permanent partial impairment of the body as a whole and that her second injury did not result in any permanent disability. On appeal the full commission increased the award for the first injury to 25% permanent partial disability to the body as a whole, and also awarded 10% permanent partial disability to the body as a whole as a result of the second injury. The circuit court affirmed the commission and from that adverse ruling comes this appeal.

For reversal the only issue presented questions the sufficiency of the evidence to support the commission’s findings. Appellant argues that the commission completely ignored the basis of the referee’s finding, based upon the medical evidence that appellee’s permanent partial disability was only 15%, and that no competent testimony, except her own, was offered to support a finding of greater disability.

We reiterate our well-established rule that in a workmen’s compensation case, the findings of the referee are without significance on appeal to the circuit court or to this court. Lane Poultry Farms v. Wagoner, 248 Ark. 661, 453 S. W. 2d 43; Moss v. El Dorado Drilling Co., 237 Ark. 80, 371 S. W. 2d 528 (1963). Also, we have often said that the degree of disputed disability incurred by a claimant as a result of an injury is a question of fact to be determined by the commission and we will affirm its finding if there is any substantial evidence to support it. Potlatch Forest, Inc. v. Smith, 237 Ark. 468, 374 S. W. 2d 166 (1964); Pearson v. Faulkner Radio Serv. Co., 220 Ark. 368, 247 S. W. 2d 964 (1952). We thus review the evidence.

Appellant concedes that appellee incurred a 15% permanent partial disability as a result of the first injury. However, it asserts that after the first injury, appellee returned to work and accomplished her tasks until her second fall which resulted in an injury temporary in nature and totally unrelated to the original injury.

Dr. Canale testified to having seen appellee on February 15, 1968, for the injury she had received on January 26, 1968, and diagnosing her injury as a herniated L-5 disc. He performed an operation and removed the disc. He recommended that appellee should not return to work until June 22, 1968, and that upon her return she should not perform work requiring her to lift over 35 to 40 pounds. He did not see appellee after June 6 until the first of July when she again visited his office, after returning to her work, and complained of- low back pain. He recommended that she continue to work. Dr. Canale next saw appellee after her second injury. He stated that in his opinion appellee had a lumbosacral strain as the result of her second fall, but that she had not suffered any additional permanent disability. However, he also testified to having written a letter to Dr. Deneke (appellee’s treating physician subsequent to her second injury) recommending-that appellee give up her present employment since it was causing her difficulty.

Dr. Deneke stated in a report to the Arkansas Rehabilitation Service that appellee should avoid walking, standing, pushing and pulling; and that she should be trained for work which could be accomplished “in a sitting position” and should not engage in an occupation requiring standing for a whole work period. Dr. Deneke, along with Dr. Tooms (another examining orthopedic specialist), felt that appellee had a 10-15% permanent partial disability based on her first injury and none on her second one. The three doctors appear to agree about appellee’s inability to continue her previous employment with appellant as a result of her second injury.

Appellee is 45 years of age, has completed one-half of the ninth grade, and is without any special training. At the time of both injuries, she sewed linings in caskets for the appellant. This job required her to reach, bend, walk, stoop, and to lift the foot part of caskets. After her first injury she returned to this work for approximately seven months, missing only six and three-quarter days which included days she saw a doctor. About a month after the second injury she again returned to this work. Her back hurt her so much, however, that she was irregular in her work attendance. About two months after appellee returned to her work, appellant terminated her employment because of sporadic absenteeism. It appears that some of- the days she missed (1214 in two months) “were days when she was hospitalized” or undergoing a doctor’s examination. Since then she has been unable to find-other work. Her other work history consists of being a waitress-and shoe store clerk. She applied for a position which was available through the Employment Security Division but was advised by Dr. Deneke not to take it because the position involved stooping, lifting, bending, and standing.

, We have held that permanent partial disability can consist of functional disability or loss in earning capacity or a combination of both. Wilson & Co. v. Christman, 244 Ark. 132, 424 S. W. 2d 863 (1968). There we said:

“The opinions of attending physicians and medical experts are admissible as competent evidence when properly presented in a compensation case, but such opinions are not conclusive. They are only to be considered by the commission along with all other competent evidence, medical and otherwise, in arriving at the degree of permanent partial disability in a compensation case.
Appellant argues that there is no evidence to sustain the commission’s award of 60% permanent partial disability. It is true that no one testified that claimant has a 60% permanent partial disability. Neither did any witness, including the appellee’s own testimony, fix his partial disability at 50% or 70%, but there is substantial evidence in the record that appellee has suffered a disability both in the loss of use of his body as a whole, and in loss of capacity to earn in the same or any other employment, the same wages he was receiving at the time of the injury.”

In that case 30% was the highest amount of permanent partial disability that existed, according to the medical evidence; however, we affirmed the commission’s award of 60%.

Likewise, in the case at bar the medical evidence would limit appellee’s recovery to 15%; however, the commission awarded a total of 35% permanent partial disability as a result of the two injuries. Following the second injury the doctors advised that appellee would be restricted on the labor market to performing tasks only in a sitting position. Dr. Deneke testified:

“* * * she made an honest effort to work, and I felt like that it was proper to recommend that she not continue in this capacity that she was working under at the Dacus Casket Company and recommended that she seek help from the Vocational Rehabilitation Service to learn a new trade and secure a job that would enable her to work in a sitting position rather than in a standing position lifting ten to fifteen pounds of weight in a position that necessitated her back to be in a flexed position.”

Following her second injury appellee applied to Vocational Rehabilitation but that agency did not have any available position allowing her to work in a sitting position. Appellee testified that she sought work with a former employer who had a cashier’s position open but was unacceptable because of her condition. She was refused work as a shoe clerk when the manager received a doctor’s report about her limited physical condition. Appellee also testified that after the second injury she had unsuccessfully tried to sew. She takes pain and sleeping pills provided by Dr. Deneke to alleviate her back pain; otherwise, she can only sleep two to three hours. Her dependent children do her housework.

The question presented in this case is one of credibility and, thus, a matter within the exclusive province of the commission. Kivett v. Redmond Co., 234 Ark. 855, 355 S. W. 2d 172 (1962). The commission reviewed the testimony adduced by the appellant and the appellee, and evaluated the conflicting evidence. Its finding has the same verity as that of a jury. Appellant’s attack upon appellee’s testimony as to the extent of her injuries, being in excess of the medical testimony, and her attempts to obtain employment, even if uncorroborated, is pertinent only to appellee’s credibility.

In the case at bar the appellee suffered two separate injuries in the employment of the-same employer. After the first injury she returned to work for about seven months and apparently performed he-r duties satisfactorily. After the second injury she was terminated a short tíme after returning to work because of sporadic absenteeism occasioned by the disabling effects of this injury. She was then restricted by her doctors to work that could be performed only in a sitting position. Further, she was handicapped by her age, lack of education, and limited work experience. As in Christman, her former employers and prospective employers refused her employment due to doctors’ reports. Certainly it must be said that when we view the evidence most favorably to the commission’s finding, as we must do, and then apply the long-established substantial evidence rule, the total award of 35% to the claimant for both injuries is justified. In the circumstances, we deem it unnecessary, and think it only academic, that we approve the allocation of a separate percentage of disability to either injury.

Affirmed.

Fogleman and Jones, JJ., dissent.

John A. Fogleman, Justice,

dissenting in part. I agree that there is substantial evidence to sustain the award pertaining to appellee’s first injury. I find no substantial evidence to support the award as to the second injury. The finding of any permanent disability arising out of the injury seems to me to be in defiance of the medical testimony and to have required the commission to accept its own medical conclusions. In order to affirm as to this portion of the disability, it must be assumed that the commission’s knowledge was substantial evidence.

The burden was upon appellee to establish the extent of her injury. Taylor v. plastics Research, 245 Ark. 638, 433 S. W. 2d 830. The claimant testified that she went back to work after her first injury, but she could hardly do the work and her back hurt all the time. She took Bufferin and went to the doctor on account of pain. She did not work full time more than four weeks, because she was unable to do so. She did not return to -the doctor because he had told her to take Bufferin when she had pain, but she had found this did not help. She stated that she was not really able to work after the first injury, but she had to work. She expressed her opinion that the second injury did more than just strain her, but stated that she was not a doctor and anyway she didn’t know. She was still having difficulty at the time of the hearing.

Appellee offered medical reports in support of her claim. Dr. D. J. Canale saw her on March 1, 1969, and expressed the opinion that the claimant was exaggerating her symptoms. He advised her to go to work whenever she felt like it. On April 10, 1969, Campbell’s Clinic evaluated her condition. In their opinion her then present symptoms represented an acute low back strain, primarily musc-uloligamentous in origin, superimposed upon a back which had not completely recovered from her surgery resulting from the first injury. They further were of the opinion that these symptoms would subside upon conservative treatment and that claimant would eventually have no permanent impairment, beyond that which she sustained as a result of her first injury, because of her most recent injury. On May 1 Dr. Robert E. Tooms of that clinic advised that claimant had a permanent partial impairment to the body as -a whole from her previous injury, that her acute- low back strain was -a temporary condition, that she was unable to do the work required by her job on April 10, 1969, and that she would be unable to consistently perform heavy work because of her previous ruptured disc. On June 13, 1969, Dr. Milton Deneke expressed the opinion that claimant no longer had any disability resulting from her injury of February 9, 1969. On June 18, 1969, in reporting that he had discharged claimant from further treatment, Dr. Canale said that he did not feel that she suffered any permanent disability from this second injury. On July 9, 1969, Dr. Canale stated that he did not feel that appellee had suffered any permanent disability as a result of her February 9, 1969, injury, but said that he did not think she should return to her previous employment.

On August 13, 1969, Dr. Deneke’s deposition was taken on behalf of respondent. He restated his opinion that the second injury was temporary and that it did not lead to any permanent disability. His deposition is epitomized in the following answer:

I feel this lady has a permanent disability because of the previous injury but that I do not feel that this has been aggravated by this second injury and that I feel that because of my examination and because of the opinion of the two specialists agreeing with my opinion, we all feel that she has reached maximum benefit from this and that anything residual is really related to the first injury.

Dr. Deneke stated that he would not have recommended that Mrs. Hardy return to the work she had been doing if he had seen her after her back surgery.

In a deposition on August 20, 1969, Dr. Canale testified that he could not find any evidence of any serious injury to claimant at all after her fall on February 9, 1969, but felt that she did have a permanent partial disability from her original ruptured disc. Dr. Tooms anticipated a gradual and complete recovery from the second injury by Mrs. Hardy when he gave his deposition on August 22, 1969.

Appellee relies upon our decisions in Glass v. Edens, 233 Ark. 786, 346 S. W. 2d 685, and Wilson & Co. v. Christman, 244 Ark. 132, 424 S. W. 2d 863, to justify a finding by the commission contrary to all medical evidence in this case. I submit that neither case supports the theory. In Glass v. Edens, we said that, along with the medical evidence as to percentage of disability, consideration should be given appellee’s age, education, experience and other matters affecting wage loss. In Christman, we simply held, as in Glass, that the commission was not limited to medical evidence only in arriving at the amount or extent of permanent partial disability. We said that medical opinions are not conclusive as to the degree of permanent partial disability. In both of those cases there was medical evidence establishing that permanent partial disability was caused by an injury. I cannot find where we have said that a claimant’s testimony, contrary to medical evidence adduced by him, is substantial evidence that permanent disability resulted from an injury. Certainly we have not said so where the claimant sought to establish permanent disability from an injury following a prior permanently disabling injury.

We have held that where questions before the commission address themselves peculiarly to the realm of scientific knowledge, the commission cannot reach its own independent medical conclusions in defiance of all medical testimony in the record. W. Shanhouse & Sons v. Simms, 224 Ark. 86, 272 S. W. 2d 68. Even if it could be said that the question whether the claimant’s back injury caused any permanent disability was not peculiarly within the realm of scientific knowledge, I do not see how the existence of causal connection of a permanent partial disability as between two back injuries can be taken out of that field.

If we say that claimant’s increased rate of absenteeism after the second injury is sufficient evidence to support the commission’s finding, in spite of her testimony that she was really unable to do the work after the first injury and in spite of all the medical testimony in the record, we have not only abandoned the rule of Shanhouse, we have discarded the substantial evidence rule in favor of something less than a scintilla.

I understand the majority opinion to imply that there is sufficient doubt about evidentiary support for permanent disability arising from the second injury that an outright affirmance of the commission’s findings would be inappropriate. The commission’s action is approved on the basis that it found a total of 35% disability, that there is overall substantial evidence to support that total percentage of disability and that the matter of allocation of the disability to any particular injury somehow becomes unnecessary. I cannot agree to this approach. I feel that the court is making a factual determination as to the award and usurping the function of the Workmen’s Compensation Commission.

The findings of fact made by tire commission are conclusive and binding upon the courts. Ark. Stat. Ann. § 81-1325 (b) (Repl. 1960); John Bishop Construction Co. v. Orlicek, 224 Ark. 182, 272 S. W. 2d 820.

The commission did not find that appellee had suffered a 35% disability from the- first injury or that allocation to the separate injuries was unnecessary. The commission specifically found that the claimant suffered a 25% permanent partial disability to the body as a whole as a result of the first injury and an additional 10% as a result of the second injury and based its award on these findings. Those percentages of disability are binding upon us upon review, which is limited to questions of law. The courts may modify, reverse, remand for rehearing or set aside the order or award, if:

1. The commission acted without or in excess of its powers.
2. The order or award was procured by fraud.
3. The facts found by the commission do not support the order or award.
4. There was not sufficient competent evidence in the record to warrant the making of the order or award.

See Solid Steel Scissors Co. v. Kennedy, 205 Ark. 958, 171 S. W. 2d 929.

The question whether there is substantial evidence to - support the commission’s findings of fact- is one of law. Eddington v. City Electric Co., 237 Ark. 804, 376 S. W. 2d 550. If properly supported they have the force and effect of a jury verdict. John Bishop Construction Co. v. Orlicek, supra. We cannot affirm, in spite of an unsupported fact finding, on trial de novo, as we might in a chancery case. See Solid Steel Scissors Co. v. Kennedy, supra. We are left, I submit, with a finding of fact supported by substantial evidence that appellee suffered only 25% permanent partial disability to the body as a whole due to her first injury. Appellee did not appeal from that finding. If the finding that a 10% disability attributable to the second injury was not supported by substantial evidence, then there is no basis for an award based on a 35% permanent partial disability on - the first injury. The only modification we could make would be to reduce the amount awarded to that amount due for a 25% permanent partial disability.

I have been unable to find any precedent for this court’s action in this case. As a matter of fact, we have said that the courts exceed their authority when they attempt to determine the amount of an award. W. C Burrow Construction Co. v. Langley, 238 Ark. 992, 386 S. W. 2d 484. In that case the commission had awarded the claimant 15% permanent partial disability due to injuries to his back. The claimant’s disabilities increased, but the commission found the increase to be unrelated to his injury. We agreed with the circuit court that appellee was entitled to an additional - disability award, but held that the amount of the award was the function of the commission and that the courts were without authority in the matter. The case was remanded for determination of a proper award by the commission.

In Moss v. El Dorado Drilling Co., 237 Ark. 80, 371 S. W. 2d 528, we were confronted with a case involving two separate back injuries, wherein there was a question whether the claimant’s disability was attributable to the first or the second injury. While two employers were involved there, we said that there was substantial evidence to prove that the claimant’s disability was due to the first injury and no substantial evidence to the contrary. The case was remanded to the commission for further proceedings not inconsistent with our opinion.

In Long-Bell Lumber Co. v. Mitchell, 206 Ark. 854, 177 S. W. 2d 920, even though the commission made an award, there was no specific finding of temporary partial disability. The commission had made a finding that there was no permanent partial disability, but stated that the claimant was suffering iron, the effects of the injury. Its award was for an operation and for temporary partial compensation. While we said that the commission had evidently found that there was a temporary partial disability, in spite of its failure to specifically say so, we remanded the case for further proceedings without expression of our opinion on the facts, saying that this was the correct procedure on the matter of a definite finding on temporary partial disability.

Neither of these cases is exactly parallel with the present one. All are indicative, however, that the commission should make the fact findings as to the extent of disability attributable to a particular injury. The most that could be said is that they would indicate the possibility of a remand of this case. In my opinion, we cannot affirm, but must either reduce the award to the amount proper for a 25% permanent partial disability or remand to the commission for further proceedings.

J. Fred Jones, Justice, dissenting. I concur in the results reached by the majority in this case, but I disagree with the manner in which the Commission arrived at the results and as affirmed by the majority opinion.

This case concerns permanent partial disability and not temporary total disability. Permanent partial disability may consist of functional disability, loss in earning capacity, or it may consist of a combination of both functional disability and loss in earning capacity. Wilson & Co., Inc. v. Christman, 244 Ark. 132, 424 S. W. 2d 863.

In the case at bar Mrs. Hardy sustained an injury to her back in 1968 which resulted in the surgical removal of a large herniated disc, and even though she returned to work following her recovery from the surgery, there is no question that she still had some disability resulting from her injury. Her doctors advised her that she was not to do any heavy lifting and she testified that she was unable to do so. She testified that she was not actually able to work following her 1968 injury but that she attempted to do so because she felt that she had to work. As a matter of fact the employer, who was self-insured, recognized that Mrs. Hardy had sustained some permanent partial disability as a result of her 1968 injury, and on the basis of medical reports paid her for a 10% permanent partial disability to the body as a whole.

Mrs. Hardy admittedly sustained a subsequent accidental injury while working for the same employer when she slipped on the floor and fell in 1969. Following this second injury her previous symptoms were revived and aggravated; she admittedly suffered some temporary total disability for which she was paid compensation due to this second injury. She was given rather extensive medical examinations following the second injury and none of the doctors who examined her were able to find any physical impairment that she did not have following her first injury and surgery, so they concluded that whatever disability she had resulted from the first injury. This being the situation, the Commission had available all the evidence in making a judicial determination of the full extent of Mrs. Hardy’s overall disability as a result of the two injuries, but was left with only the testimony of Mrs. Hardy in attempting to arrive at how much of her disability was occasioned by the first injury and how much was occasioned by the second injury. As a matter of fact Mrs. Hardy made no claim for permanent injury resulting from the second injury. Mrs. Hardy’s contentions were stated by her attorney at the hearing before the referee as follows:

“On behalf of the claimant, Mildred Hardy, it is her contention that she suffered an injury to her back on January 26, 1968, in the course of her employment with Dacus Casket Company. That this injury necessitated the herniated L-4 disc and as a result of this injury and subsequent surgery she has been permanently disabled. That her permanent disability has been fixed by her attending physician 10 to 15% to the body as a whole. This percentage fixed by the physician related to functional disability only and that due to other factors claimant is permanently disabled to a greater degree than 10 to 15% to the body as a whole. Secondly, the claimant, on February 6th, 1969, fell while at work for Dacus Casket Company and received a new injury to her back. That as a result of the new injury she was hospitalized by Doctors Canale and Deneke for the purpose of performing a myelogram on May 26, 1969. That she was not released as able to perform any duties by Dr. Canale until June 14, 1969, and she is entitled to additional compensation for this period of time—that is May 26th of ’69 through June 14th of ’69 and also that the respondent, Dacus, is liable for the payment of all of the doctors, hospital and drug bills relating to both injuries.”

Mrs. Hardy’s testimony, pertinent to the issue, is as follows:

“A. When I first went back to work Buddy put me on lining panels and I thought I could line out panels.
Q. Buddy is the foreman?
A. Yes and I told him that I just could not lift those panels that I would like to try lining out—of course he takes his time about putting anybody anywhere.
Q. At any rate, did he let you?
A. He finally put me back over there lining out.
Q. Were you able to perform that work?
A. I did.
Q. And you were doing all right until you fell the second time?
A. I was working.
Q. Did you miss any time regularly?
A. Certainly I missed some work.
Q, I think you said you had three full weeks and that is all?
A. I am not sure—it might have been four weeks —full checks that I drew—from June 24th until I was hurt again in February of this year.
Q. You were able to perform your work after you went back after your first injury?
A. Well I worked—I wasn’t able, no, but I had to work.
Q. Do you feel that you are in worse shape now than you were after your first injury?
A. Well I was not really able to do that after my first injury but as I said I had to work.
Q. Do you think that you are now back to the point that you were after your first injury when you returned to work?
A. I think the second injury more than just strained—well I am not a doctor but anyway I don’t know—I still have difficulty.
Q. What I am trying to find out—are you having any more difficulty now after the second accident than you did after the first accident?
A. Yes—I guess it is about—
Q. Do you think you have gotten back to the point that you were immediately before your second fall?
A. No.”

It is apparent to me from the record before us that following her injury and surgery in 1968, Mrs. Hardy was not able to do the work she had previously been doing but did it anyway because she felt that she had to, and because her employer finally permitted her to more or less select the type of work she did. After Mrs. Hardy was terminated following her second injury, and after she was released from medical treatment following that injury, she was for the first time since either injury, forced into the open labor market and because of the disability she had sustained she was unable to obtain available employment which she had previously done without difficulty.

In my opinion there is substantial evidence to sustain the Commission’s findings that the claimant has suffered 35% permanent partial disability to her body as a whole, but I find no evidence in the record whereby 25% of the disability can be attributed to the first injury and 10% to the second injury. It is my view that the second injury and resulting disability only evidenced and emphasized the permanent partial disability the claimant already had; and it is my opinion that under all the evidence pertaining to the second injury, one could reasonably assume that Mrs. Hardy could and would have returned to work without disability or complaint following her release by the doctors following her second injury, had she never had the first injury and disability resulting therefrom. By the same token, the evidence of record convinces me that if Mrs. Hardy had never sustained her second injury, she would have experienced the same difficulty in finding employment as she did experience following her termination from “lining out” caskets.

I would remand for a simple determination of the nature and extent of the disability and an award of benefits.

       For a case lacking substantial evidence to separate disabilities in a temporary total disability case, see Hollifield v. Bird & Son, Inc., 227 Ark. 703, 301 S. W. 2d 27.


author: Carleton Harris, Chief Justice.

text:
    Rudy Lee SUTHERLAND v. ARKANSAS DEPARTMENT OF INSURANCE
    5-5609
    467 S. W. 2d 724
    Opinion delivered June 14, 1971

      Glenn F. Walther, for appellant.

      Thomas S. Stone, Early R. Wiseman and Stephen E. Safly, for appellee.
   Carleton Harris, Chief Justice.

Appellant, Rudy Lee Sutherland, is a licensed insurance agent under the laws of Arkansas, having been licensed in April, 1968. Sutherland, in December, 1969, was convicted in California of a felony, such felony being equivalent to embezzlement in this state. On April 6, 1970, the Insurance Commissioner of the State of Arkansas conducted a hearing for the purpose of determining whether Sutherland’s license should be cancelled, and after taking evidence, issued an order revoking the license of Sutherland on the basis of Sub-Paragraph (e) of Paragraph 1 of Ark. Stat. Ann. § 66-2835 (Repl. 1966), which gives as one of the grounds for revocation the following: “Conviction, by final judgment, of a felony involving moral turpitude.” Thereupon the commissioner ordered appellant’s license to sell insurance cancelled. In the meantime, Sutherland had appealed the conviction in the California court to the appellate courts, and he appealed the cancellation order to the Pulaski County Circuit Court, asserting that he had not been convicted by a “final judgment” since his case was on appeal; that final conviction would not occur until the highest state appellate court handling this type of case had affirmed the conviction. Thereafter, the Circuit Court, (Second Division) of Pulaski County, not agreeing with this contention, affirmed the order of the commissioner revoking the license of the appellant, and from the judgment so entered, Sutherland brings this Appeal. Three points are argued for reversal, but all relate to whether the judgment of the California trial court was a “final judgment”, the judgement of conviction now pending on appeal.

At the outset, it might be stated that it is argued by appellant, that under California law, Sutherland has not been convicted by final judgment, a point not raised in the trial court, but even had this question been timely raised, there would be no point in discussing the California law, for the matter is controlled by Arkansas law, i. e., the judgment entered by the California trial court, insofar as it relates to the question at hand, is governed by whether the judgment was final under Arkansas law. This is true because of the ancient principle of law that where the enforcement of the foreign law would contravene the established policy of the state of the forum, the law of the forum governs. See Beauchamp v. Bertig. 90 Ark. 351, 119 S. W. 75. See also Leflar, American Conflicts Law (1968) § 109 p. 251. The Arkansas view of the question presented was set forth in 1917 in the case of Huddleston v. Craighead County, 128 Ark. 287, 194 S. W. 17. In 1935 this case was cited and relied upon by this court in its holding in State Medical Board v. Rodgers, 190 Ark. 266, 79 S. W. 2d 83, a case involving the revocation of a medical license. As recently as June 15, 1970, the holdings in Huddleston and Rodgers were reiterated in Tucker v. State, 248 Ark. 979, 455 S. W. 2d 888. Of course, the General Assembly, in enacting legislation, is presumed to be familiar with the holdings of the Arkansas Supreme Court, Lumbermen’s Mut. Cas. Co. v. Moses, 224 Ark. 67, 271 S. W. 2d 780, and accordingly was presumed to be familiar with the cases just cited, when passing the statute, now codified as Section 66-2835.

Before discussing the application of these cases to the instant question, we must first examine the proceedings in California. The record reflects that on December 9, 1969, the jury returned the following verdict:

“IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF ORANGE The People of the State of California, Plaintiff, vs. RUDY LEE SUTHERLAND, Defendant. No. C-21263 VERDICT We, the Jury in the above entitled action find the Defendant, RUDY LEE SUTHERLAND, Guilty of the crime of Felony, to-wit: Violation of Sections 484-487 of the Penal Code of the State of California (Grand Theft) as charged in the Information. Roma L. Marx, Foreman Dated: Dec. 9, 1969.”

Thereupon, the court excused the jurors and set for hearing a “Motion for New Trial and Probation and Sentencing set for January 9, 1970 at 1:45 P. M. in Department 13”. On that date, the record reveals the following:

“Defendant having been arraigned for Judgment and it appearing that there is no legal cause why judgment should not be pronounced and the Court having read and considered the probation report, it is the judgment of the Court that imposition of sentence be suspended for three (3) years and that the defendant shall be placed on probation, subject to the following terms and conditions:

(1) serve nine (9) months in the Orange County Jail;
(2) obey all the rules and regulations of the Orange County Sheriff with regard to prisoners;
(3) violate no laws;
(4) obey the usual terms and conditions of probation of the State supervising the probation;
(5) on release from Orange County Jail, defendant shall not leave this State without the approval of his probation officer, who is hereby authorized to arrange and provide out-of-state supervision;
(6) not to engage in any occupation or business without the prior approval of his probation officer;
(7) manage his business or occupation in accordance with the supervision of his probation officer, and in the event defendant is employed as an agent of any principal in any business, defendant shall not accept funds from parties dealing with the principal, unless such funds are in the form of check or money order and made payable to the principal, and then defendant shall transfer such funds immediately to the principal, and further, defendant shall not maintain a trust account of his own for holding such funds, regardless of the nature of his activity, and if he is paid by his principal, the payment to him shall be forwarded by the principal to him and he shall not take his “percentage” or commission out of the funds he obtains from customers or clients.

The Court further decreed that it is the present intent of the Court that this offense may be reduced to a misdemeanor if the defendant leads an exemplary life during the period of the probation. Defendant remanded to the custody of the Orange County Sheriff. Notice of Appeal having been filed, bail pending appeal is set at $5,000.00 plus penalty assessment.”

In State Medical Board v. Rodgers supra, this court squarely passed upon this question. Rodgers entered a plea of guilty to a charge of possessing counterfeit money in the Federal District Court, and on November 10, 1955, was ordered confined in the United States Reformatory for a period of three years. Subsequently however, on March 1, 1954, the court ordered that Rodgers be held on probation for the term and period of five years. In the meantime, the State Medical Board, on January 10, 1954, had entered an order revoking his license to practice medicine in the State of Arkansas, from which order Rodgers appealed. The circuit court rendered judgment vacating and setting aside the order of revocation, and this court affirmed the circuit court, stating:

“In view of the fact that appellee has not been required to suffer the punishment prescribed in the judgment arid sentence abovementioned, the question naturally arises as to whether he has been convicted within the meaning of § 8242, Crawford & Moses’ Digest. It is true that he pleaded guilty to a crime involving moral turpitude, and that he was sentenced to serve three years in the reformatory, but the court before whom that case was tried saw proper to set aside the sentence and put him on probation for a period of five years. On November 21, 1933, the execution of the sentence imposed was suspended until March 1, 1934, and on the latter date it was further suspended for five years; therefore at the time appellant held its meeting and revoked appellee’s license, January 10, 1934, the sentence theretofore imposed had been suspended and something still remained to be done before he could be said to have been convicted within the meaning of the statute. # # # # The judgment rendered is .not a final one. [Our emphasis] Evidently it was in the contemplation of the court that some further order might be entered. * * * * There has been no final judgment entered because the sentence has been suspended, and the appellee has not been required to surrender himself in execution of such judgment. There not being a final judgment of conviction, appellant board was without authority, under this provision of the statute and under the charge made, to revoke his license, and the circuit court correctly quashed said order.”

Very clearly the California court judgment suspended the imposition of the felony sentence for three years and placed appellant on probation. Likewise, as stated in Rodgers, the court contemplated that some further order might be entered for the judgment recites:

“The Court further decreed that it is the present intent of the Court that this offense may be reduced to a misdemeanor if the defendant leads an exemplary life during the period of the probation.”

It is thus apparent that, under Arkansas holdings, Sutherland has not been convicted “by final judgment”.

Of course, this does not necessarily mean that the Commissioner may not revoke Sutherland’s license, for other causes for. revocation of license are listed in Ark. Stat. Ann. (.Repl. 1966) § 66-2835. But it is clear that there can be no revocation based upon the California conviction as it presently stands.

Reversed.

       According to the statement of the case, Sutherland is a former Arkansan who had moved to California, and operated an insurance agency for several years; his California license was revoked on April 11, 1968, and the Arkansas license granted within a few days thereafter, the revocation being unknown to the Arkansas Insurance Commissioner.

       It would appear from the California statute that appellant’s argument would be erroneous. Pen. C. A. § 1237 provides that an appeal may be taken by a defendant: 1. “From a final judgment of conviction; an order granting probation shall be deemed to be a final judgment within the meaning of this section. . . The cases are not entirely clear as they do not relate to circumstances similar to those in the present judgment.

       All of these cases contain the language that an “accused does not become a convict until there has been a judgment and sentence by the court”. Actually, this language was not pertinent in Rodgers and Tucker, and was only copied from Huddleston where it was pertinent, the statute there in question providing that a county would not be liable for costs where the defendant was convicted until execution should have been issued against the property of the “convict”. The court then used the language heretofore quoted.

       For instance, it might well be that the facts, upon which the conviction was obtained in California, if presented to the commissioner, would support a revocation under sub-section (d).


author: George Rose Smith, Justice.

text:
    J. L. FREEMAN, Incompetent, By His Guardian v. Carmie F. FREEMAN et ux
    5-5612
    467 S. W. 2d 703
    Opinion delivered June 14, 1971

      William H. Arnold, for appellant.

      James C. Cole, for appellees.
   George Rose Smith, Justice.

The appellant J. L. Freeman, now an incompetent person acting through his guardian, brought this suit to cancel a deed by which Freeman and his wife, who died before the suit was filed, purportedly conveyed a farm to their son, the appellee Carmie F. Freeman. The complaint asserted that the signatures of both grantors were forgeries. The chancellor found Mrs. Freeman’s signature to be a forgery, but he found Freeman’s signature to be genuine. The correctness of the latter finding is the main issue now before us.

Trying the case de novo, we cannot say that the decree is against the weight of the evidence. It was rather natural for Carmie’s parents to convey the farm to him. He returned from military service in 1947 and thereafter lived on the property with his parents and with his own family. He farmed the land in partnership with his father. The elder Freeman was too old to farm the property actively when he and his wife first conveyed the land to Carmie on November 14, 1966. The validity of that deed is not questioned.

On August 19, 1968, the older couple conveyed the rest of their real property to their other two children. Those two children then learned for the first time about the earlier deed to Carmie. A family dispute arose, but it ended when Carmie and his wife voluntarily conveyed the farm back to Carmie’s parents on September 4, 1968. Only twenty-two days later, however, the elder Freemans ostensibly again deeded the farm to Carmie and his wife. That is the deed now challenged as a forgery.

A handwriting expert testified for the plaintiff that both the grantors’ signatures were forgeries. It was that witness’s opinion that Mrs. Freeman’s signature was a traced forgery while that of her husband was a simulated forgery.

There is cogent proof to the contrary. As we have said, the parents’ conveyance of the farm to the son who had lived and worked with them for almost twenty years was a natural disposition of the property. Carmie testified that his parents signed the deed now in controversy. J. E. Still, the attorney who prepared the deed and took the acknowledgment, testified positively that Freeman signed the instrument in his presence, though Still was not equally certain about Mrs. Freeman’s signature. The deed was kept in a lock box to which the elder Freeman had access—hardly a likely place for Carmie to keep a forged instrument. Upon the record as a whole we do not find the preponderance of the evidence to be contrary to the chancellor’s conclusion that Freeman’s signature was genuine.

That conclusion ais» disposes of the appellant’s remaining contentions. It is argued that since a quitclaim deed does not convey an after-acquired title, Freeman’s deed as a tenant by the entirety did not convey any interest passing to Freeman upon his wife’s subsequent death. That argument is unsound. A deed executed by the husband alone carries his survivorship interest as a present estate, so that the entire title vests in the grantee if the husband does survive the wife. “The alienation by the husband of a moiety will not defeat the wife’s title to that moiety if she survive him; but, if he survive, the conveyance becomes as effective to pass the whole estate as it would had he been sole seized at the time of the conveyance.” Davies v. Johnson, 124 Ark. 390, 187 S. W. 323 (1916).

It is also argued that the deed was invalid if Mrs. Freeman’s signature was forged, because a conveyance of the homestead by the husband alone is void. Hall v. Mitchell, 175 Ark. 641, 1 S. W. 2d 59 (1927). No such contention was made in the plaintiff’s complaint. Moreover, the Freemans relinquished their homestead right by their valid deed to Carmie in 1966, and there is no showing that they occupied the land or otherwise reestablished a homestead right during their twenty-two days of ownership in 1968.

Affirmed.


author: Lyle Brown, Justice.

text:
    Leland HENLEY, Chairman v. W. L. GOGGINS et al
    5-5605
    467 S. W. 2d 697
    Opinion delivered June 14, 1971

      John B. Driver, for appellant.

      N. J. Henley, for appellees.
   Lyle Brown, Justice.

The appellant and the two appellees constitute the Searcy County Board of Election Commissioners. The commissioners met twenty days prior to the March 9, 1971, school election, to select judges and clerks. Appellant, a Republican and the minority member of the commission, insisted that he was entitled to select one judge and one clerk for each voting precinct. Appellees contended that such a provision in the general election laws does not apply to school elections, those elections being nonpartisan. The circuit court agreed with appellees and denied appellant’s petition for a writ of mandamus, which was heard on February 22. Appellant’s only issue is that, as the representative of the minority party in Searcy County, he was entitled to appoint one judge and one clerk in the St. Joe School District 69 election. Appellees suggest that the appeal should be dismissed. That is on the ground that the election was held on March 9 and the issue is therefore moot.

The only explicit provision in our law for the selection of election judges and clerks on a partisan basis is found in Act 465 of 1969. Section 6(d) of that Act provides that for a general election three judges and two clerks shall be selected for each ballot box. It provides that two judges and one clerk shall be chosen by those two members of the County Board of Election Commissioners who represent the majority party, and that the other judge and clerk shall be chosen by the third member of the board who represents the minority party. See Ark. Stat. Ann. § 3-506(d) (Supp. 1969).

To sustain his contention that § 3-506(d) applies to school elections, appellant cites us to Ark. Stat. Ann. §80-317 (Repl. 1960):

Hereafter the County Board of Election Commissioners shall be charged with the responsibility of selecting judges and clerks of all school elections held in the several counties of this State. Said County Board of Election Commissioners shall also be authorized and empowered to make all necessary arrangements for conducting school elections and the general election laws, insofar as applicable, shall apply to school elections. (Emphasis added.)

Section 80-317 comes from Acts 1949, No. 56. Section 80-318 also provides that the election commissioners shall provide the election supplies and appoint the judges and clerks. That section was enacted in 1951.

Appellant points up the clause in § 80-317, “the general election laws, insofar as applicable, shall apply to school elections.” Hence, appellant says, the selection of judges and clerks on a partisan basis, as provided in Section 6(d) of Act 465, is applicable. But there is another provision in Act 465 which runs contrary to appellant’s argument. That provision is codified in Ark. Stat. Ann. § 3-101(c) as follows:

“General or special election” shall mean the regular biennial or annual elections for election of United States, State, District, County, Township, and Municipal officials, and the special elections to fill vacancies therein. Such term, as used in this Act, shall not apply to school elections or officials of school districts. (Emphasis added.)

We therefore conclude that when Act 465 provides for partisan judges and clerks it refers only to “general or special elections” as the term is defined in the Act and that its application to school elections is specifically excluded in the section just cited. That conclusion is still more plausible when we consider the fact that school elections are nonpartisan; candidates run as independents, their names being placed on the ballot by the requisite number of signatures on a petition. Furthermore, in providing for the selection of judges and clerks in §§ 80-317 and 318, the Legislature could have easily inserted the partisan selection provision had it so desired.

Appellees’ argument that this case is moot and should therefore be dismissed is without merit. We have many times decided election cases that actually had become moot because “controversies about the election laws present issues of public interest that ought to be set at rest.” Rockefeller v. Purcell, 245 Ark. 536, 434 S. W. 2d 72 (1968).

Affirmed.