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Smith, J.
The two cases herein consolidated involved attacks on the constitutionality of Act No. 244, passed by the Legislature of 1919, creating the Dardanelle Road Improvement District of Yell County, and the suits also attack the constitutionality of Act No. 63 of the special session of 1920, validating the assessment of benefits in said district.
Appellants candidly concede that the points involved in the attack upon Act 244 have, since the institution of the litigation, been involved in other litigation and decided adversely to their contentions here; but say that these questions have been considered at such recent date and are of such paramount importance that the attention and consideration of the court is asked before these questions are finally foreclosed.
The chief insistence is that the organization of an improvement district for the purpose of maintaining and keeping a public highway in repair constitutes an invasion of the ¿jurisdiction of the county court. But that question was disposed of in the recent case of Dickinson v. Reeder, 143 Ark. 228, adversely to appellant’s contention.
It is insisted that Act No. 63, passed at the special 1920 session and approved by the Governor on February 6, 1920, is void, for the reason that thirty days’ notice could not have been given of the intention to apply for the passage of an act curing these assessments, for the reason that the assessment rolls were not filed with the county clerk of Yell County until January 26,1920, which is less than thirty days prior to the approval of the curative act by the Governor.
But this showing is not conclusive of the question of notice. The General Assembly might have found, for instance, that the assessments were completed some time before they were filed, and since the decision in the case of Davis v. Gaines, 48 Ark. 370, it has been uniformly held that all questions relating to the sufficiency and form of notice, and proof of publication of notice, in regard to special bills, were matters which were addressed to the Legislature, and which could not be reviewed by the courts. Gibson v. Spikes, 143 Ark. 270.
No error appearing in the finding or decree of the court below, the decree is in each case affirmed.
Hart, J., not participating. | [
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McCulloch, C. J.
Appellant instituted this action in the circuit court of Yell County, Dardanelle District, to recover on an alleged oral agreement between her and the two insurance companies sued, whereby the latter agreed to insure her property, consisting of a stock of merchandise and store fixtures, against loss or destruction by fire. The court sustained a demurrer to the complaint and rendered judgment dismissing the complaint, from which an appeal has been prosecuted.
It is alleged in the complaint that appellant entered into a contract with the said companies, acting through their general agent at Dardanelle, on January 28, 1916, whereby it was agreed that the companies should insure her property “for the term of three years from that date, and then from year to year until such time as she might direct such contract should cease, provided defendants continued the business of writing fire insurance in said town of Dardanelle after said term of three years.”
It is further alleged that, pursuant to said contract, the said companies issued and delivered to her a joint policy for the first year in part performance of the original agreement, and that she paid the premium for that policy and at that time directed the agent to write other policies “from year to year during the said three years and to come for the premium money when such policies were so written,” and that the said companies through their agent agreed to do so. It is also alleged that the property was destroyed by fire ón October 8, 1918.
It is familiar law that prior oral agreements and antecedent writings forming a part of the negotiations for a contract become merged in the- subsequent written contract and are incompetent as evidence for the purpose of enlarging the scope of such written contract. Graves v. Bodcaw Lumber Co., 129 Ark. 354. This applies to the alleged oral agreement set forth in the first part of the complaint, for, according to the allegations of the complaint, the agreement was for a policy covering the term of three years from that time “and then from year to year, etc.”, and that the companies issued and delivered a policy for one year, which was accepted by appellant and the premium paid. The policy issued and delivered constituted a contract between the parties, and all antecedent negotiations and agreements were merged into it. Union National Bank v. German Ins. Co., 71 Fed. 473; Moore v. Insurance Co., 34 N. W. 183; Commercial Accident Co. v. Bates, 176 Ill. 194; Insurance Co. v. Mowry, 96 U. S. 544.
The last allegation with respect to the agreement between the parties is that at the time of the issuance of the policy the further agreement was that other policies should be “issued from year to year during the said three years,” and this contract, .according to the allegations, was not to be performed within a year from the making thereof and was within the statute of frauds. Kirby’s Digest, sec. 3654. According to the -allegations of the complaint, this contract was executory, and was not to take effect immediately, and was not a contract of insurance, but was one to insure or to issue a policy at a future date. A contract of insurance usually takes effect immediately, whereas a contract to insure or to issue a policy takes effect at a future date. The distinction between the two classes of contracts is made clear in the cases cited on the brief of counsel for appellees.
The question as to the contract being within the statute of frauds was properly raised by demurrer. Izard v. Connecticut Fire Ins. Co., 128 Ark. 433.
The court was, therefore, correct in sustaining the demurrer, and the judgment is affirmed. | [
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"Wood, J.
Appellee was engaged in the business of buying and selling hay during the months of September, October, November and December, 1916. Appellee ordered of appellant 125 cars to enable him to ship the hay from various stations on appellant’s railroad. He was furnished 27 cars. The box cars, such as appellee ordered, would hold from ten to fifteen tons of hay, and-if appellant had furnished the cars ordered by appellee for the shipment of the hay, he would have realized a profit at the current market price of hay during that time of from 50' cents to $1.50- per ton, which amounted in the aggregate to the sum of $1,173, all of which he lost by reason of appellant’s refusal and failure to furnish the cars as ordered by the appellee.
Appellee instituted this action against the appellants, and alleged substantially the above facts in his complaint, and filed therewith as exhibit “A” an itemized statement of the number of cars ordered during the time mentioned; the number furnished; the price paid per ton when purchased and price paid fot same when sold. He alleged actual damage in the above sum. Appellee also alleged that during the time mentioned the appellants were furnishing cars to others and in so doing discriminating against the appellee. On account of the alleged discrimination appellee prayed that he might have judgment for double the amount of the actual damages he had sustained.
The appellants denied the material allegations of the complaint and set up that the failure to furnish appellee all the cars alleged to have been ordered by him was caused by reason of the war activities of Herman submarines which resulted in a lack of sufficient facilities on the Atlantic seaboard of unloading cars promptly upon reaching the ports, which deprived the appellants of the control and use of their cars; that appellant’s freight equipment was further overtaxed because of the increase of the price of ■ cotton in 1916 and an early harvest of that crop; that appellee’s business was mostly interstate and to have furnished him with all the cars ordered at the time the orders were placed would have interfered with appellant’s interstate com merce and would have resulted in giving preference to appellee’s intrastate business and thus would have discriminated against those making interstate shipments as well as against others who were making intrastate shipments, in violation of the laws of the State of Arkansas and also of the United States.
The testimony of the appellee and other witnesses introduced in his behalf tended to establish the facts as above set forth and as alleged in appellee’s complaint. Appellee’s testimony shows that he ordered 61 cars during the month of September and received 5 or 6. In October he ordered 27 cars and got 3; in November he ordered 25 cars and received 5 or 6; in December he ordered 21 cars and got 9. Of the 125 cars ordered he received 27 cars. Other people were getting cars for the shipment of their hay after appellee had placed his orders for the cars and at the same-time cars were refused him. He took the matter up with the local agent almost daily and also with the superintendent of the car service. Appellee agreed to handle about 65 tons of hay of one Fisher, paying him the market price for same, but was compelled to cancel his contract with Fisher because appellee could not get cars to ship the same.
The testimony of witness Fisher on behalf of the appellee corroborated the testimony of the appellee as to this transaction, and Ms testimony further shows that, after delivering three cars of hay which he had contracted to sell to the appellee, appellee could not get any more cars, and he then sold the balance to one Sims, who got cars. The first car load was sold to Sims on the 17th of December and shipped about the 19th. The next car was sold on the 30th and shipped January 1st.
The testimony of appellants’ local agent, through whom appellee ordered most of the cars, was to the effect that appellant was able to furnish 50 to 75 per cent of the cars ordered through Mm. The testimony of appellant’s superintendent of car service was as follows: “We were able to take care of only 40 to 50 per cent, of the requirements, due to the abnormal amount o£ business, influenced by war conditions in Europe, and this condition resulted in an unprecedented movement .of business to the sea-board and caused the tying up of equipment of western lines at the Atlantic sea-board principally.
The verdict was in favor of the appellee in the sum of $597.37. From a judgment in that sum is this appeal.
The appellant contends that the undisputed evidence shows that there was no negligent failure to furnish cars and no unjust discrimination against appellee in favor of other shippers similarly situated in the furnishing of cars.
The undisputed evidence shows that during the four months that appellee complains of ear shortage, the exigencies of war had caused the congestion of eastern ports, and that railroad lines as far west as the Missouri River were congested and held thousands of appellant’s cars. In consequence thereof appellant was unable to furnish its shippers the usual amount of cars required to handle the business from its stations which otherwise it was fully equipped to do.
The testimony of appellant’s station agent, at Hazen, through whom appellee ordered cars, and the testimony of its superintendent of car service, shows that during the four months involved appellant was able to fill 40 to 75 per cent, of the orders received for cars. The testimony shows that appellee during the months mentioned ordered 125 cars and received 27, or about 22 per cent., whereas, according to the above testimony he .should have received from 50 to 94 cars.
It is obvious, therefore, that appellants are in no attitude to complain because the court submitted the issue to the jury as to whether appellants supplied the appellee with the number of cars to which he was entitled according to the percentage which they were able to furnish under the unexpected and extraordinary circumstances.
The evidence set forth above was legally sufficient to justify the court in submitting to the jury the issue as to whether or not appellants had unlawfully discriminated against appellee in favor of Sims, who was also engaged in the business of buying and selling hay at the town of Hazen. The jury were warranted in finding from the above testimony that appellee had contracted to purchase about 65 tons of hay from one Fisher, but which purchase he had to abandon because of appellant’s failure to furnish him cars for the shipment of the same; that immediately thereafter Fisher sold the same hay to Sims, who secured cars and loaded it out. The appellee and Sims were similarly situated, as both were engaged in the same business in the town of Hazen.
The testimony shows that appellants furnished from 40 to 75 per cent, of the cars ordered. If Sims received 40 to- 75 per cent, of the cars ordered by him, it certainly can not be said as a matter of law that appellee, under similar circumstances, should not have received like treatment at the hands of the appellants. We can not discover any undisputed evidence in the record furnishing a conclusive and satisfactory reason for the seeming preference in favor of 'Sims in the matter of furnishing him cars. The issue, therefore, as to the discrimination was one which the court properly submitted to the jury for its determination.
In St. L. S. W. Ry. Co. v. Clay County Gin Co., 77 Ark. 360, we said: “But the liability of the carrier under the act of March 11, 1899 (Kirby’s Digest, § 6804), is founded, not so much on the inadequacy of the facilities at his command to supply the demands of shippers, as on his refusal or failure to make the facilities which he has, available to all who are similarly situated, without discrimination or delay. For the act makes it the duty to furnish, without discrimination or delay. So if the carrier, by reason of some unforeseen and unusual or unprecedented condition in the traffic, is unable to furnish cars for the accommodation of all shippers, he must, in order to escape liability under this statute, furnish such as he has to all shippers without discrimination or, delay. ’ ’
Appellants do not urge that there was any error ifi. the instructions of the trial court on the issue as to whether or not appellants failed to furnish cars nor on the issue of unjust discrimination.
We find, upon examination of the instructions, that these issues were submitted under declarations of law in conformity with the doctrine announced by this court in St. L. S. W. Ry. Co. v. Clay County Gin Co., supra; St. L., I. M. & S. Ry. Co. v. Wynne Hoop & Cooperage Co., 81 Ark. 373; St. L. S. W. Ry. Co. v. State, 85 Ark. 311; Cumbie v. St. L., I. M. & S. Ry. Co., 105 Ark. 415; St. L., I. M. & S. Ry. Co. v. Laser Grain Co., 120 Ark. 119.
■The court, over the objection of appellants, instructed the jury on the measure of damages as follows: “You are instructed that if you find for the plaintiff in the first count of his complaint, his measure of damages is the difference between the market value of the hay at the point of shipment when cars should have been furnished, and at the point of destination when same should have been furnished.”
There was testimony from which the jury might have found that the appellee purchased and sold the hay f. o. b. at point of shipment. In other words, the jury could have found from the testimony that the appellee was not put to any expense in the loading of cars at point of shipment nor in the transportation from that point to their destination. The instruction, therefore, announced the correct rule for measuring the damages. St. L. S. W. Ry. Co. v. Leder, 87 Ark. 298.
There is no error. Affirmed. | [
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Wood, J.
Appellant was indicted under section 1830 of Kirby’s Digest, for the crime of receiving stolen goods knowing them to be stolen with intent to deprive the true owner thereof. He was convicted and appeals from a judgment sentencing him to eighteen months imprisonment in the State penitentiary.
There was testimony on behalf of the State tending to prove that in January, 1920, articles of clothing were stolen from several persons in Little Rock, Pulaski County, Arkansas, of the aggregate value of more than $300. Two boys confessed to stealing the property, and they told the police officers where the articles could be found. They were under a dwelling house at 315 Gaines Street, up near the front. Appellant, after he was arrested, also told the officers where they could find the stolen goods.
On cross-examination, one of the officers was asked if he knew whether or not appellant was whipped at police headquarters. He answered that he did not know anything about it. After this the question was repeated and objected to by the State. The court, at this juncture, sustained the objection, reserving a final ruling until appellant showed that he was subjected to a whipping for the purpose of extorting statements from him.
The boys who stole the property stated that they deposited the same at Nineteenth and Commerce. One of these stated that at appellant’s request witness and one Davis “went out there and got out the stuff and carried it down to the house” where appellant resided; that appellant stated he would put it where it could not be found. The witness testified that the appellant knew that the articles were stolen. Witness stated that he so informed the appellant.
The testimony of the appellant was to the effect that he did not have any conversation with the parties who stole the goods. He was informed by one Davis after the parties were arrested that the goods were taken to appellant’s house. Appellant looked for the things and could not find them. The officers arrested appellant and took him to the city hall where they asked him about the suit cases containing the articles. Appellant testified that the officers beat him up so he did not know what he was talking about. They whipped him “on his naked meat,” broke the skin, and brought blood from him. One of the officers put his foot on his head and was holding him down on the floor. This officer hit appellant over the head three times with a black-jack. After beating him they gave him salve for his wounds. They injured his back, and he passed blood in his urine. They tried to make him confess that he stole the two grips.
At this juncture the appellant was asked the following question:
“Q. Did you confess it?”
“A. No.”
Among other instructions the court gave the following: “If you find the defendant guilty, you will say, ‘We, the jury, find the defendant guilty of receiving stolen property, as charged in the indictment,’ and fix his punishment at a term of years in the penitentiary not less than one or no more than five years. If you find the defendant guilty and can not agree upon the punishment you will leave that to the court and in that event the court will fix the punishment. ’ ’
The appellant duly excepted' to the ruling of the court in giving this instruction. The jury returned a verdict as follows:
“We the jury find the defendant guilty and leave the punishment to the court.” There was no objection by the appellant at the time the verdict was rendered, to the form of the verdict.
s The appellant contends that the court erred in permitting the State to introduce the confession of appellant without first proving- that the confession was free and voluntary.
The'record does not bear out counsel for appellant in his contention that the State, over the objection of appellant, introduced a confession by appellant in order to establish his guilt. Although appellant testified that he was severely beaten by the officers for the purpose of making him confess, nevertheless he denied that he made any confession. The proof introduced on behalf of the State did not tend to prove any confession on the part of appellant. True, the prosecuting attorney propounded certain questions in his cross-examination of appellant concerning alleged statements made by appellant when a witness on the examining trial before the municipal court. The appellant answered these questions by saying that he did not know, or by categorically denying that he made the statements attributed to him.
It is manifest that the purpose of this examination was not to introduce any alleged statement of the appellant in order to show a confession, but for the purpose of laying the foundation for the impeachment of appellant as a witness.
The record as abstracted by appellant’s counsel does not show that the court permitted any testimony in the nature of a confession to go to the jury. Moreover, if any of the statements made by appellant on the examining trial were susceptible b-ing construed as in the nature of confessions of guilt, such statements were made in open court, and besides' were entirely voluntary. See Iverson v. State, 99 Ark. 453. It was proved that the appellant was anxious to testify before the examining court.
There was no prejudicial error in the rulings of the court in admitting or excluding testimony.
The appellant did not object to the form of the verdict at'the time same was rendered. Furthermore, the verdict was not fatally defective on account of its form. The court had fully and correctly instructed the jury as to the essentials of the crime of which appellant was accused, when the verdict is taken in connection with the instructions there can be no doubt that the jury intended to find appellant guilty of receiving stolen property knowing at the time he received it that same was stolen. The court had instructed the jury that, before they could find the defendant guilty, they “must find that at the time he received it he did so receive it with the knowledge that it was stolen and that he had the intent in so receiving it to deprive the true owner of the property. There was no error in the instruction as to the form of the verdict.
The indictment charged that appellant “did unlawfully and feloniously receive and have with the felonious intent to deprive the true owners thereof, he then and there well knowing that the property had been so feloniously stolen, etc.” When the jury found the appellant guilty as charged in the indictment, they necessarily found that he received the goods knowing at the time that they were stolen.
There is no error. Affirmed. | [
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McCulloch, C. ' J.
Appellee Wilson is county clerk of Hempstead County and filed a claim for fees against the county in the following form:
“Washington, Ark., April 28, 1919.
“County of Hempstead:
To John L. Wilson, County Clerk, Dr.
“Services in and about county court, fee book J,
pages 165 and 166....................................................................«$133.05”
An affidavit in statutory form was attached to the claim. The county court allowed $99.15 of the claim, but refused to allow the balance, and appellee prosecuted an appeal to the circuit court where on a trial anew the claim was allowed in full.
It is contended that 'there was not sufficient evidence to sustain the judgment. Mr. O. C. Bailey, the clerk of .the circuit court, was introduced as a witness and testified concerning appellee’s fee bill, and as to thé method of making out circuit court fee bills. It appears from the testimony that the fees of appellee were based upon services performed with reference to the fee bills approved by the circuit court and filed with the county court for allowance. The testimony of Mr. Bailey, as set forth in the bill of exceptions, showed that he testified from the itemized circuit court fee bills and they constituted a part (>. the evidence in the case, but they were not copied in the bill of exceptions. We must assume therefore that those fee bills .had some probative force in establishing appellee ’s claim in connection with the testimony of Mr. Bailey.
It is also contended that appellee’s claim was not presented in proper form, in that it was not itemized as required by statute, which provides that “the county court shall require an itemized account of any claims presented to them for allowance, sworn to as required by the preceding section, and may, in all cases, require satisfactory evidence, in addition thereto, of the correctness of the account, and may examine the parties and witnesses on oath, touching the same.” Kirby’s Digest, § 1454.
Appellee’s claim, as filed, did set forth the pages of the fee book in the office of the county clerk for the specification of the items. No objection to the sufficiency of the specification of the items was made in the court below, and it is too late to raise that question here for the first time. If objection had. been made on that point, the court could have permitted amendment. We are of the opinion therefore that there are no grounds for a reversal of the judgment and the same is affirmed. | [
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Hart, J.
(after stating the facts). It is first sought to uphold the judgment on the ground that the insured was not employed in a mine at the time of his death, and that his policy was not forfeited under section 43 of the constitution which is copied in the statement of facts.
We can not agree with counsel in this contention. The foreman, under whom the insured worked, stated in positive terms that he was engaged in ditching for a week or ten days before he was killed and that before this time he was working in the mines. According to his testimony they were digging ditches for the drainage of water to pass out of the mines.
Another witness testified that the insured had been engaged in digging and loading ore in cars; that the bauxite ore was first loosened by blasting and was then loaded into the cars by the insured and other persons. In this way a pit between ten and fifteen feet deep was dug in the ground. A track was laid down in it and the insured and others would load the ore into the cars on the track. The cars would then be drawn out of the pit. When the blasts were made the workmen would be notified so that they could get out of the way. It is true the mines were not under the ground, but the undisputed testimony shows that the insured was engaged in working in the mines. A part of his duties was to load the ore in the cars after it had been loosened by blasting so that it could be handled with a shovel. As they proceeded with this work, they would dig down deeper :and deeper into the ground so that the pit was from ten to fifteen feet deep. Another part of the insured’s duty was to help dig ditches for the purpose of draining the mines. There is no contradiction to this testimony, and it constituted working in the mine, just as much as was the work of the employee who did the blasting. It is contended that the work was not particularly dangerous and that there was no reason to increase the dues of the insured for engaging in that kind of occupation. Be that as it may, the parties had the right to contract with each other and designate working in mines as a hazardous occupation which required notice to the company and an increased payment of dues. The contract does not restrict the clause in question to those engaged in underground mining. The language used is “those employed in mines, not otherwise prohibited,” etc.
Clause (b) of the section provides that if the member engages in any of the occupations mentioned in clause (a) of the section, he shall within thirty days notify the clerk of his camp of his change of occupation and shall pay on each monthly installment of assessments thirty cents of each thousand dollars of his beneficiary certificate in addition to the regular rate.
It further provides that any member failing to notify the clerk and to make the payment as provided shall stand suspended and his beneficiary certificate shall be null and void. Thus it will be seen that the section of the 'constitution is self-executing. It provides in specific terms that if the member does not comply with the provisions of the section he shall be suspended and his benefit certificate shall be null and void.
As we have already seen, the insured was engaged in working in the bauxite mine at the time he was killed by Herrick, and he had not complied with the provisions of the section of the constitution just referred to. The beneficiary certificate made the constitution a part of the contract of insurance. The Legislature of 1917 passed an act pertaining to the regulation and incorporation of fraternal beneficiary associations. Acts of Ark. 1917, vol. 2, p. 2087.
Under section 8 of the act the certificate, the charter of the company, the constitution and laws of the society and the application for membership and medical examination signed by the applicant constitute the agreement between the society and the members. The society in question is a fraternal benefit association.
In Acree v. Whitley, 136 Ark. 149, and in Sovereign Camp Woodmen of the World v. Newsom, 143 Ark. 132, the court held that the insurance certificate of a fraternal society, being an Arkansas contract, is governed by the statute just referred to.
Again, it is contended by counsel for the plaintiff that the judgment of the lower court should be upheld under the incontestability clause of the benefit certificate. We do not agree with counsel in this contention. The clause referred to is section 68 of the constitution. It provides that when a beneficiary certificate has been in force for five consecutive years immediately preceding the death, while in good standing, of the member holding the same, the payment thereof shall not be contested on any ground other than those stated in the section.
It appears from the record that the insured had not made the payments required by section 43 of the constitution when he became employed in the bauxite mines. He did not notify his camp of his change, of occupation and did not pay the additional monthly dues required by the section. The concluding part of the section provides that any such member failing to notify the clerk and to make such payments as above provided shall stand suspended and his beneficiary certificate shall be null and void. Thus it will be seen that the provision is self-executing, and that the benefit certificate was null and void because the member had not complied with the section in the respects just mentioned.. Therefore he was not a member in good standing at the time of his death and the certificate had not been in force for five conseuetive years immediately preceding his death. Hence the incontestability clause of the constitution can avail the plaintiff nothing in this case.
It follows that the court erred in finding for the plaintiff, and for that error the judgment will be reversed and the cause remanded for further proceedings according to law and not inconsistent with this opinion. | [
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Wood, J.
This action was brought by the appellant against the appellee to recover the possession of a Ford touring car.
The appellant alleged that he was the owner and entitled to the immediate possession of the car; that it was worth $500; that the appellee upon demand of appellant refused to surrender the same.
The appellee denied the allegations of the complaint and alleged that he had been damaged by the wrongful bringing of the suit in the sum of $500, for which he asked judgment.
The facts, which the testimony on behalf of the appellee tended to show, are substantially as follows: Appellant was a dealer in automobiles. The' appellee owned a Chevrolet car and proposed to the appellant to trade him the same for a Ford. This the appellant re fused. The appellee gave his Chevrolet and the sum of $50 to Charley Allen for a 40-acre tract of land near Arkadelphia, Arkansas. While the appellee was negotiating for this land, the appellant told him that if he could make the deal with Allen for the land appellant would give the appellee the Ford car for the land. After the appellee had bought 'the land, he and his wife made the deed to the appellant. While appellee was negotiating for the' land, the appellant told appellee that he was going away, and that appellee could make the deed and deliver it to appellant’s agent, Thompson, who was authorized to receive it. The appellee delivered the deed to appellant’s agent, who delivered to appellee the Ford car.
The facts, which the testimony on behalf of the appellant tended to show, are substantially as follows: When appellee proposed to trade appellant 40 acres of land for appellant’s Ford car, appellant told appellee that he might make the trade if the land was all right. Appellee said it was a 40-acre tract of good land; that the timber had never been cut over, and he thought it was worth $400. Appellant let appellee have the car in controversy for the purpose of delivering appellee’s Chevrolet, which appellee had traded for the land. Appellee never •brought the car back. Appellant was to get a note secured by the land and a Ford car. Appellant had never seen the land at the time he agreed to take same in trade for the car. The appellant did not trade the car for the land. Appellee did not make the deed to the appellant before he, appellee, took possession of the car. Appellee had the car in his possession which appellant had loaned him, and when appellant got back from Hot Springs he found that appellee had left the deed with appellant’s agent, Thompson. Appellant denied that he had instructed his agent, Thompson, to deliver the car and accept the deed in his absence.
Appellant testified that the oar in controversy was taken in on trade for a Hodge car from one Brewer, the understanding being that he, appellant, or Brewer, had the right to dispose of it for $500, the amount of the balance Brewer owed on the Dodge car. The effect of appellant’s testimony was that he did not own the car in controversy at the time he loaned the same to the appellee ; that it was only left with him by Brewer to secure appellant in the sum of $500, for the balance of the purchase money due him from Brewer for a Dodge car, which either he or Brewer had the right to.sell; that appellant loaned the car in controversy to the appellee; that appellant was contemplating a trade of the car with the appellee for 40 acres of land provided the appellee obtained the land, but that the trade between the appellant and appellee had not been consummated at the time appellant left for Hot Springs. The trade between appellant and appellee, according to appellant’s version, was that he was to sell appellee the car for $500 and take the appellee’s note for same secured by the land and the car.
The appellant offered to prove by Charlie Adams the value of the land which appellant sold to the appellee. The court refused to admit this testimony, to which ruling the appellant excepted.
The appellant further offered to show by witness Allen that at the time he traded the land to the appellee for the Chevrolet car, appellee represented that he had the right to sell the Chevrolet; that at that time one Dr. Moore held a $75 ownership note against the car which appellee traded to Allen for the land.
The court refused to allow this testimony, to which ruling the appellant duly excepted.
The trial resulted in a verdict and judgment in favor of the appellee. From that judgment is this appeal.
The court did not err in its rulings. The offered testimony was not germane to the issue between the appellant and the appellee. The offered testimony related to issues that were entirely collateral. The clear cut issue between the appellant and the appellee, as set forth by the pleadings and the testimony of the parties respectively, is, whether or not the appellant had sold the auto mobile in controversy to the appellee for the tract of land conveyed by the appellee to appellant.
Ajppellant set np in his complaint that he was the owner and entitled to immediate possession of the automobile. He grounded his ownership and right to possession on the following testimony: “The trade was, I was to get a note secured by the land and the Ford car.
I loaned him the car to go make the trade with Mr. Allen and deliver, the Chevrolet to Mr. Allen. ’ ’ In his rebuttal testimony, the appellant again stated, “The trade is like I stated it was in my original statement. I did not trade the car for the piece of land.”
On the other hand, appellee denied that the appellant was the owner of the car and testified in part: “I traded my land for the car. I got the land from Charlie Allen. Traded Allen a Chevrolet car and Allen made me a deed to the land; it was a fractional forty, but the same land traded to me by Allen was traded to Rudolph. We made an even trade. The land for the car.”
The appellant will not be heard to say in one breath, “I did not sell the car,” and in the next breath, “But if I did sell it the appellee made false representations which caused me to do so, and the appellee consequently had no title to the land which he gave me in consideration for the automobile.” A party will not be allowed in this manner to play fast and loose in a lawsuit. The positions which appellant thus asks the court to allow him to assume in this litigation were wholly inconsistent with each other. Furthermore, even if the appellant had set up that there was a sale of the automobile and that the consideration therefor had failed on account of the deceit and fraud of the appellee, there is no testimony whatever in the record to sustain such contention. There is no testimony to prove that if the sale was made, which was asserted by the appellee and denied by the appellant, the consideration failed because the appellee had no title to the land. On the contrary, the undisputed evidence shows that his title to the land was complete.
The issue and the only issue between the appellant and the appellee was submitted to the jury under correct instructions. There was evidence to sustain the verdict.
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Hart, J.
(after stating the facts). The equity jurisdiction to quiet title, independent of statute, can only be invoked by a plaintiff in possession, unless his title be merely an equitable one. The reason is that where the title is a purely legal one and some one else is in possession, the remedy at law is plain, adequate and complete, and an action of ejectment can not be maintained under the guise of a bill in chancery. In such case the adverse party has a constitutional right to a trial by a jury. Mathews v. Marks, 44 Ark. 436; Ashley v. Little Rock, 56 Ark. 391; Burke v. St. Louis, I. M. & S. Ry. Co., 72 Ark. 256, and St. Louis Refrigerator & Wooden Gutter Co. v. Thornton, 74 Ark. 383.
The action has been greatly extended by statute and in many States is the ordinary mode of trying disputed titles. Pomeroy’s Equity Jurisprudence (3 ed.), vol. 4, section 1396. Such is not the case in this State, however.
Section 665 of Kirby’s Digest, which is a part of the chapter relating to the method of procedure in confirming tax titles, provides that there shall be no confirmation of the sale of any lands that are in actual possession of any person claiming title adverse to the petitioner. At the time the proceedings in the case at bar were brought by Gr. W. Pearman, Anna Pearman was in the actual possession of the lots in controversy, claiming title thereto adverse to the petitioner. She claimed that Gr. W. Pearman had given the lots to his son who was her husband, and that she and her husband had resided on the lots until they went West and afterward collected the rents on the same until his death. He left surviving him his widow and an infant child. The child died in about three months after the father, and the widow went into possession of the lots after her child’s death, and she claimed to hold adversely to Gr. W. Pear-man at the time he brought the proceedings to confirm his tax title in the lots.
Anna Pearman did not seek to quiet her own title to the lots, and thereby give the court jurisdiction of the entire controversy as was the case in Goodrum v. Ayers, 56 Ark. 93. She was content to file exceptions to the right of Gr. W. Pearman to have his tax title confirmed and did not seek affirmative relief on her own account. She was in adverse possession of the lots at the time Gr. W. Pearman filed his petition to confirm his tax title> and the court erred in granting the relief prayed for.
It follows that the decree must be reversed and the cause will be remanded for further proceedings in accordance with the principles of equity and not inconsistent with this opinion. | [
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Humphreys, J.
Appellee instituted suit against appellant in the Independence Circuit Court to recover $2,000, as beneficiary of a policy of life insurance issued by appellant on the life of her husband, Thos. S. Compton, Jr.
Appellee filed answer, pleading nonliability on the alleged ground that the policy was not delivered to the insured during his lifetime and while in good health, and, for that reason, under the terms of the policy, was an incomplete contract.
The cause was heard upon the pleadings and evidence, at the conclusion of which each party requested a peremptory instruction in his favor. The court refused the request of appellant and granted the request of appellee. In response to the peremptory instruction in favor of appellee, the jury returned a verdict against appellant in the sum of $2,000. The court thereupon assessed a penalty of twelve per cent, on the face of the judgment, $250 attorney’s fee, and rendered judgment against appellant for $2,490, from which judgment, an appeal has been duly prosecuted to this court.
The facts necessary to a determination of the only question presented by this appeal are as follows: In the month of August, 1918, Thos. S. Compton, Jr., the then husband of appellee, applied for two life insurance policies of $2,500 each, in appellant’s life insurance company. On account of having entered the military service during the war between the United States and Germany, appellant company issued a policy for only $2,000 and mailed same, on the 4th day of October, 1918, to its agent, R. M. Carter, at Batesville, Arkansas, for delivery and collection of the first premium. The policy contained the following clause: “This policy shall not take effect until the first premium shall have been actually paid and the policy actually delivered to the insured during his lifetime and good health of the insured.” In the interim between the application and the issuance of the policy the insured, Thos. S. Compton, Jr., directed the agent to deliver the policy, when it came, to his wife, the beneficiary therein, for him. When the policy arrived, the insured was at Camp Mayberry, Austin, Texas. The policy was received by the agent on the 5th day of October, 1918, and, on the same day, delivered by him to Susie Compton, wife of the said Thos. S. Compton, Jr. At the time the agent delivered the policy, he collected the first year’s premium and accounted to appellant company for the amount due it. The insured, Thos. S. Compton, Jr., was in good health at the time the policy was delivered, but on the 13th of the month, died of influenza at said camp. His body was shipped back to Batesville and interred. Proof of his death was made to appellant company in accordance with the requirement of the policy and payment was refused on the ground that the policy was not delivered in person to the insured in his lifetime.
Appellant contends that the contract was incomplete and not binding on it, because the policy was not actually delivered to the insured. In other words, the contention is made that the delivery of the policy to the wife of Thos. S. Compton, Jr., in keeping with his instruction so to do, was not a delivery to him within the meaning of the delivery clause in the policy. The test of an actual delivery of an insurance policy hy the insurer, or its agent, to the insured is not whether it was deposited with the insured, but whether it passed intentionally out of the control or dominion of the insurer, or its agents, into the control or dominion of the insured. It is not an essential to actual delivery that there be a manual delivery to the insured. A delivery to a third person, designated by the insured, is, to all intents and purposes, a delivery to the insured. 14 R. C. L. 898; National Life Assn. v. Spear, 111 Ark. 173; Mo. State Life Ins. Co. v. Burton, 129 Ark. 137. In the two Arkansas cases, supra, the court held, under the facts of each, there had been no delivery of the policies. In those cases, the companies and their agents had not parted with the control or dominion over the policies; but the doctrine was clearly announced in the case of National Life Assn. v. Spear, and clearly inferable in Mo. State Life Ins. Co. v. Burton, that if an insurance company had intentionally parted with the control of and dominion over the policies, such act would amount to a delivery of the policies within the meaning of clauses similar to the delivery clause in the policy involved in the instant case.
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McCulloch, C. J.
The facts of the case are these: appellee is a creditor of the Sehmidt-Blakely Coal Company, a domestic corporation engaged in coal mining, the debt being evidenced by certain promissory notes executed to cover a pre-existing debt. Appellants were president and secretary, respectively, and the owners of practically all of the stock of said corporation, and in January, 1919, they entered into a written contract whereby they sold and delivered all of the property of the Sehmidt-Blakely Coal Company to certain individuals, who organized another corporation, called the Alix Coal Company, for the purpose of operating the mines. In the contract of sale the new corporation, the Alix Coal Company, assumed payment of certain specified debts of the Sehmidt-Blakely Coal Company, which were mentioned in a list attached to the contract. This list does not contain the debt to appellee, but in another clause of the contract appellants undertook and agreed with Alix Coal Company to “protect it against any other claims against the Sehmidt-Blakely Coal Company and Superior Coal Company, arising prior to January 15, 1919, either paying same or allowing same to be deducted from moneys due us, after settling through suit or legal adjustment.”
There was a preliminary contract between the parties giving the purchasers an option, which was afterward accepted, and the contract from which the above quotation is taken was the writing which evidenced the consummation of the sale. The option contract contained a stipulation that “if this option is exercised, the said R. A. Schmidt and Charles Schmidt are to deliver the property herein mentioned free and clear of all liens, charges and obligations of every character and. description, and that they are to pay and satisfy all demands, debts and obligations of every character and description, due from and by the Schmidt-Blakely Coal Company and the Superior Coal Company.”
Appellee sued appellants on the obligation of the contract with the original purchasers, .the Alix Coal Company, claiming the right to maintain the suit on the theory that the contract was made for appellee’s benefit as a creditor of the Schmidt-Blakely Coal Company. There are many decisions of this court announcing the familiar rule that where a promise is made to one party upon a sufficient consideration for the benefit of another, the beneficiary may sue the promisor on his promise. Hecht v. Caughron, 46 Ark. 132; Thomas Mfg. Co. v. Prather, 65 Ark. 27; Spear Mining Co. v. Shinn, 93 Ark. 346; Dickinson v. McCoppin, 121 Ark. 414. It is not sufficient, however, under the law declared in those decisions, merely to show that there is a benefit to result to a party, but in order to sue there must be privity between the parties seeking to maintain the action of the promisee in the contract. In other words, there must be an obligation existing at that time on the part of the promisee which constituted privity between the parties in order to entitle a third party to maintain the action on the promise. Dickinson v. McCoppin, supra. The cases in which the doctrine has been applied are those where the promisor entered into an engagement with the debtor of a third party to pay the debt, and it was held that the third party, as a creditor of the promisee in the contract, had the right to maintain the action. In the present ease, however, there is no privity existing between appellee and the purchaser under the contract, who were the promisees in the contract sued on. Neither the Alix Coal Company nor the original purchasers were resting under any obligation to pay the debts of the Schmidt Blakely Coal Company to appellee except those expressly mentioned. The promise was made entirely for their benefit; and while appellee would have been the beneficiary on the performance of the contract, there was no such privity as to entitle him to claim those benefits.
This is not an 'attack on the validity of the sale, and there is no fraud -charged, and the purchasers of the property of the Schmidt-Blakely Coal Company did not by that purchase bind themselves to pay this debt or any other debt of the Schmidt-Blakely Coal Company, except those expressly mentioned in the contract. We are therefore unable to find any theory upon which appellee’s action against appellants can be sustained. They have made no contract with appellee for the payment of his debt, nor have they made any contract for his benefit-with one who was in privity with appellee.
The judgment is reversed, and as the facts fully developed show there is no right of action, the cause will be dismissed. So ordered. | [
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Smith, J.
Appellant sold appellee a wagon and team and harness for $367.50, and in payment therefor took his note due and payable November 15, 1919, and to secure the payment of this note, with the interest thereon, took a chattel mortgage on the property sold and four head of cattle which appellee already owned. On July 19, 1919, appellant brought replevin for this property, alleging waste upon the part of appellee and depreciation of the security. The property was taken under the order of delivery and sold by appellant under the power contained in the mortgage to several different purchasers. Thereafter, at the October, 1919, term of the circuit court appellee answered, denying, waste or depreciation of the property, and prayed judgment for its value and damages for its detention. The jury fixed the value of the property in solido at $483 and assessed the damages at $163.33, and from the judgment pronounced thereon is this appeal.
It is first insisted that error was committed in refusing to give instructions requested by appellant. But it appears that the instructions given by the court fully and fairly submitted the case to the jury. The jury was told to find for appellant if they found the fact to be that appellee was permitting the stock upon which appellant had the mortgage “to depreciate to that extent that it diminished the security for the debt and in that way endangered the collection of the debt.” This was the issue in the case, and no error was committed in the refusing other instructions which could not properly have been more favorable to appellant.
It is chiefly insisted that the verdict is excessive. The four head of cattle were sold separately for the total sum of $130.50, and it is urged that no competent testimony placed the other property at a higher figure than $300, and it is, therefore, said that the verdict should not be permitted to stand for a larger sum than $430.50. Appellee testified that the wagon and team and harness, in his opinion, were worth what he had agreed to pay, which was $367, and the sales prices of the cattle at the foreclosure sale were not necessarily conclusive of their value. Harrison v. Fulk, 128 Ark. 232.
There is an assignment of error, however, in the motion for a new trial which appears to be well taken, and that is that the verdict and judgment are contrary to the law and the evidence.
By statute it is provided that “In actions for recovery of specific personal property, the jury must assess the value of the property, as also the damages for the taking or detention, whenever, by their verdict, there will be a judgment for the recovery or return of the property.” Section 6867, Kirby’s Digest. It affirmatively appears that there can be no recovery or return of the property in this case, as its conversion became complete with the foreclosure sale, the property passing into the hands of different persons who are not parties to this litigation. The verdict here was in solido. The proper practice is to value separately each article the right to the possession of which is determined by the judgment in the case, so that the judgment may be satisfied pro tanto by the return of such property; but objec tion to a verdict which does not thus value the property may be waived and is waived unless objected to before the discharge of the jury. Hobbs v. Clark, 53 Ark. 411. It would have been useless in this case to have had a finding of the value of each article separately, because the judgment could not be satisfied in whole or in part by the return of the property thus valued.
The measure of the damages is, therefore, the value of the property at the time of the service of the order of delivery, with interest at 6 per cent, from that date. 23 R. C. L., section 77 of the chapter on Replevin. The judgment for the $483, the value of the property, will, therefore, be affirmed; but the judgment for the $163.33 will be set aside and, in lieu thereof, appellee will have judgment for the interest on $483 at 6 per cent, from July 19, 1919, to this date, together with all costs, except the costs of this appeal, which will be assessed against appellee, and, as thus modified, the judgment will be affirmed. | [
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Wood, J.
John M. Moody lived in Philadelphia, Pa. On the 16th day of January, 1917, a contract was entered into by Moody with J. A. DuFresne, whereby the former leased to the latter a tract of land consisting of 240 acres known as the “Valentine place,” in Arkansas County, Arkansas. The lease was for a consideration of $1 and certain covenants whereby the lessee undertook to improve and put the land in cultivation as a rice plantation.
The improvements specified included substantial fences of hog and barbed wire, a well costing not less than $1,800, an engine and boiler costing not less than $2,000, proper housing and sheds for the well and machinery and belting and fixtures necessary for their operation.
The lessor had the right to cancel the lease if the lessee failed within six months to perform his covenants with regard to the improvements. The lessee was to keep insurance on the rice plant thus installed, to keep same free from all incumbrances and to pay all taxes, water rents and assessments.
Among the specific covenants of the lease is the following : “X. It is mutually covenanted and agreed that the party of the first part may at any time during the operation of this lease sell all or any part of the property hereby leased, and that this lease shall thereupon terminate, and if this lease be so terminated before the expiration of five (5) years, then in that event the said party of the first part shall pay to the said party of the second part the sum which the said party of the second part may have expended in erecting or causing to be erected the aforesaid plant with the fixtures and appurtenances thereto, less a sum which shall be computed on the basis of a rental at seven hundred and sixty dollars ($760) a year for such time as the said party of the second part shall have occupied said premises, provided second party shall have until December 31, following date of sale, in which to harvest his-crop, if sale is made after second party has begun crop for that year.”
There was also a provision that if the lessee breached any of his covenants the lessor had the right to take possession of the premises. There was a covenant on the part of the lessor that if the lessee performed the covenants on his part he should hold the premises for a period of five years.
John M. Moody also owned another tract of land in Arkansas County known as the “Massey place,” consisting of 270 acres, adjoining the “Valentine place,” which by letter he promised to lease in connection with the “Valentine place,” but the “Massey place” was not included in the written lease.
DuFresne entered into possession through subtenants.
On November 30, 1917, John M. Moody and George P. Paul executed what purported to be a contract by which Moody agreed to sell, and Paul to buy, the “Valentine place” for the express consideration of $14,400. The contract provided that the deed should be executed and delivered upon the receipt of the purchase money on December 29,1917.
John M. Moody and his wife, Henrietta, executed what purported to be a warranty deed to George P. Paul, conveying to him the “Valentine place” for the express consideration of $14,400. This deed purported to be executed and acknowledged by John M. Moody on December 21, 1917, and by his wife on January 17, 1918.
This action was instituted by the appellee against the appellant on January 5, 1918.
The appellee alleged that he had bought the lands from John M. Moody; that appellant was a tenant of Moody in 1917; that his tenancy had terminated in 1917, but that he was attempting and threatening to enter upon the appellee’s premises and that unless restrained the appellant and his subtenants would enter and trespass upon the appellee’s land and cut and use timber therefrom to appellee’s irreparable injury; that he had offered to pay appellant for the improvements which he had put upon the land; that appellant had permitted numerous leases, liens, and incumbrances to be placed upon the land and had forfeited his rights under the lease contract with Moody.
A temporary restraining order was issued against appellant by the county judge of Arkansas County, as prayed in the petition.
The appellant answered and denied that the appellee had purchased the lands from John M. Moody and denied that appellee was the owner thereof. He alleged that he was the tenant of Moody in 1917 and was still his tenant. He set up the lease contract with Moody, but denied that he had breached the same. On the contrary, he averred that he had fully complied with its terms and that same was still in full force and effect. He alleged that John M. Moody conceived the idea of executing and recording a deed conveying the lands in controversy to the appellee Paul; that he believed that Moody and Paul entered into a conspiracy against him for the purpose of canceling his lease contract and for the purpose of ousting appellant from the possession of the premises. He alleged that he believed that Paul never purchased the land but permitted Moody to execute the deed to him for the purpose of annulling 'his lease contract; that such action on the part of Paul and Moody was a fraud upon the rights of appellant. Appellant alleged that he and his agents had a right to occupy the premises, and, notwithstanding the fact that appellant was in actual possession of the premises under the lease contract,that a temporary restraining order had been issued against him restraining him from entering upon the premises and from exercising any control or custody thereof; that after such restraining order was issued possession was taken by Moody or some one in his employ or control. He alleged that he believed the complaint was caused to be filed by Moody and not by Paul. Appellant alleged that he had been greatly damaged by the conduct of Paul and Moody as above set forth; that Moody had breached the lease contract; that the cost of the improvement placed on the premises less the sum of $760 per year, which he was to pay Moody as rent, was justly due him.
Appellant prayed that his answer be taken as a cross-bill against Moody and Paul and that the alleged deed from Moody to Paul be canceled; that he have damages for the breach of contract and for the improvements placed on the premises and for his costs and all other relief.
Paul, answering the cross-complaint, denied its allegations as to the conspiracy between him and Moody. He renewed the allegations of his complaint, stated that if any indebtedness was due the appellant for improvements less the rental the same was due from Moody and not from the appellee. He continued the tender for value of these improvements and prayed the court to determine the amount due the appellant, if any, and that the appellee have judgment for this sum against Moody. He prayed that the appellant’s cross-bill be dismissed.
The cause was heard upon the pleadings, exhibits, documents and depositions.
The chancery court found that there was no equity in the appellant’s cross-complaint and dismissed the same and entered a decree making the temporary restraining order perpetual in favor of the appellee and found that the amount due the appellant for his improvements was the sum of $3,993.60 and directed the clerk to pay the same, less the costs, out of the $5,000 in his hands deposited by appellee. Further directed the clerk to refund or pay to appellee the balance in his hands. From that decree is this appeal.
The complaint of the appellee did not state a cause of action within the jurisdiction of a court of equity because the facts as alleged, if true, do not show that the appellee did not have a complete and adequate remedy at law. As was stated by this court in Western Tie & Timber Co. v. Newport Land Co., 75 Ark. 286-88: “The insolvency of the defendant is not alleged. There is no allegation that there would be continuing.trespasses making necessary a multiplicity of suits to redress the injury at law. No facts are alleged to show that there will be irreparable injury to the freehold.” Ex parte Foster, 11 Ark. 304; Myers v. Hawkins, 67 Ark. 413; Haggart v. Chapman & Dewey Land Co., 77 Ark. 527; Burnside v. Union Saw Mill Co., 92 Ark. 118.
But, even if the allegation of insolvency of the appellant had been made and if there had been an allegation as to the necessity of a multiplicity of suits in order to stay the hand of the trespasser, still the complaint would not have stated a cause of action in equity for the reason that the appellee’s title was in dispute. “Whenever the complainant’s title is disputed in case of trespass, the court of equity will not interfere by injunction on the ground of a multiplicity of suits unless he has successfully established his title by trial at law.” Syllabus 5, Carney v. Hadley, 32 Fla. 344, 22 L. R .A. 233.
Nevertheless, the trial court had jurisdiction to adjudicate all matters in controversy between the appellant and the appellee for the reason that the appellant prayed that his answer to appellee’s complaint be taken as a cross-bill against the appellee and asked that the deed from Moody to appellee be canceled and that he have damages for the breach of the lease contract between himself and Moody. This gave the court jurisdiction over the subject-matter of the controversy between the appellant and the appellee, and, having acquired jurisdiction for any purpose, the trial court correctly exercised it for the purpose of settling the rights of the parties to the action. Pollack v. Steinke, 100 Ark. 28-35; Galloway v. Darby, 105 Ark. 559; Ferguson v. Rogers, 129 Ark. 197-203.
The appellant waived “all objections to the jurisdiction by filing a cross-bill asking for affirmative relief, and upon the issue thus joined, proceeding to final adjudication.” Harbottle v. Central Coal & Coke Co., 134 Ark. 254-6, and cases there cited.
If there was a breach of the lease contract by Moody in entering into a conspiracy with Paul for the purpose of ousting the appellant from the possession of the premises, then Moody was liable to the appellant for all the damages growing out of such a breach, including the illegal or wrongful issuance of the temporary restraining order. (But, on the other hand, if Moody made a boma fide sale of the land in controversy to the appellee and notified the appellant of that fact and offered to pay appellant for his improvements in compliance with the provisions of the lease contract, and if appellant refused to accept such offer and thereafter set up a claim to the land in controversy and was interfering with the appellee or his vendee in his possession and control of the premises, then the appellant breached the lease contract and in an action in equity by him to cancel the deed from Moody to Paul, the court of equity would be justified in finding that the appellant had no right to continue to hold the land and that no damages had accrued to him by reason of the issuance of the temporary restraining order.
This brings us to a consideration of the issue as to whether or not the purported contract for the sale of the land by Moody to Paul and the purported deed afterward executed by him to Paul in pursuance of such contract were bona fide transactions or whether they were the result of a conspiracy between Moody and Paul for the purpose of canceling the lease contract as alleged in appellant’s answer arid cross-bill.
The testimony on this issue is exceedingly voluminous, and it would unduly extend this opinion, and could serve no useful purpose as a precedent, to set out the testimony in detail and discuss the reasons for the conclusion we have reached. The issue is purely one of fact. The testimony has been carefully analyzed and elaborately argued in the briefs of the respective counsel. Counsel for the appellee has challenged the accuracy of appellant’s abstract of the testimony and we therefore have examined the record and do not find that any essential particulars for the proper presentation of appellant’s cause have been omitted.
After a careful consideration of the facts found in the record we are convinced that the appellant has not proved by a preponderance of the testimony that the deed executed by Moody to Paul does not evidence a bona fide sale and purchase of the land in controversy. Appellee met the burden of proof required of him to sustain the cause of action stated in his complaint when he showed by his testimony and the testimony of Moody that the land in controversy was purchased by the appellee from Moody. Both Moody and the appellee so testify and they adduce a contract for the sale and purchase and also the deed evidencing the transfer. They testify to the execution of these instruments.
The appellant alleged that the contract and deed were but the consummation of a conspiracy to defraud the appellant of his rights. The burden was upon the appellant to show that the contract and deed which he asked to have canceled were fraudulent. Appellant brings forward testimony of circumstances which would warrant the suspicion that the alleged sale of the land by Moody to Paul was a bogus transaction.
We have considered the entire testimony in the record which tends to throw light upon the transaction, and our conclusion is that the testimony adduced by the appellant is not sufficient to show by a clear preponderance that Moody and appellee had entered into a conspiracy to defraud the appellant. On the contrary, the testimony of Moody and the appellee and the facts and circumstances proved by other witnesses together with various exhibits, letters and documents adduced at the hearing prove by a preponderance of the evidence that the transaction between Moody and Paul was bona fide. At least it can not be said that their conduct was wholly incompatible with an honest purpose.
While fraud may be established by circumstantial evidence, yet the circumstances must be so strong and well connected as to clearly show fraud. Solemn written instruments, the execution of which are proved beyond peradventure, can not be overturned by circumstances which only lead to a mere suspicion of their execution for a fraudulent purpose.
In Bank of Little Rock v. Frank, 63 Ark. 16-22, Judge Battle announced the familiar rule that circumstances ‘ ‘ may be sufficient to excite suspicion, but suspicion is not the equivalent of proof. Circumstances necessary to prove fraud must be such as naturally, logically and clearly indicate its existence.” Russell v. Brooks, 92 Ark. 509, and other eases collated in 3 Crawford’s Digest, pp. 2299-3002.
Moody, under the lease contract, had the right to sell his land when, where and to whom he pleased. The only limitation being that in the event of a sale he should pay to the appellant the amount expended by him in the establishment of the rice plant, and, if the sale were made after the appellant began his crop for any year, that he should have until December 31 following the sale to harvest his crop.
The conduct of Moody and Paul in connection with the alleged sale and purchase of the land in controversy, under the evidence, is consistent with, and justified by, ■the provision of the contract of lease between the appellant and Moody.
The amount which the appellant had expended for improvements was likewise a question of fact, and the finding of the chancellor on that issue is not clearly against the preponderance of the evidence.
We find no error in the decree, and it is, therefore, • affirmed. | [
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Humphreys, J.
This suit was instituted by appellants against appellee in the Pulaski Chancery Court to cancel deeds executed by appellants to appellee, conveying an undivided two-thirds interest in the west half of lots one and two in block seventeen in Pope’s Addition to the city of Little Rock, Pulaski County, Arkansas, on the ground that they were procured by appellee from appellants through undue influence.
Appellee filed answer, denying that the deeds in question were procured by her through undue influence, but, on the contrary, were executed by appellants freely and of their own accord with a full understanding of all the facts.
The cause was submitted upon the pleadings and evidence, which resulted in a decree in the chancery court, dismissing the bill of appellants for want of equity. From that decree, an appeal has been prosecuted to this court, and the cause is before us for trial de novo.
The facts, in substance, are as follows: John D. Shackleford and his wife, Ada B. Shackleford, appellee herein, had not lived together as husband and wife for several years prior to the purchase of the property in litigation by John D. Shackleford on October 13, 1911. He roomed with and cared for their two boys, John M. and Bill, and appellee roomed with their daughter, Ada Mae, and looked after all of them. At the time of the purchase of the property, it .was Shackleford’s intention that his two children, appellants herein, should have the property. A settled hatred existed between Shackleford and his wife. He procured a divorce from her, without contest, on June 28, 1915. At that time, the property in question and his farm were encumbered in the same mortgage for a large sum. A property settlement was arranged, by which the appellee received the income from the home, or property in question, and was to pay Shackleford $25 per month to assist in meeting the interest payments on the mortgage. Appellee failed to meet her monthly payments and requested the mortgagee to foreclose, planning to buy the home place in at the sale. Before suit in foreclosure was commenced, Shackleford arranged a loan, placing the city home and farm under separate mortgages. The home place was mortgaged for $4,000 to a building and loan association. Appellee had fallen behind $350 on her property settlement contract. Shackleford, who had remarried, desiring to assist his children, then approaching their majority, in such way that his former wife could not reap any benefit therefrom, after considerable negotiation, conveyed the home place, September 25, 1917, to appellants and appellee jointly, on condition that appellee, pay him $350 she owed under the original property settlement contract and assume the building and loan mortgage on the property. The value of the property was about $10,000 or $12,000 at the time the deed was executed. Appellee accepted the deed and assumed the mortgage under the advice of her attorney, who, at the time, advised her to get a deed from appellants before she put all her money into the place, suggesting that she might have to borrow money on the property, in which event, unless she did obtain such a deed; it would be necessary to get the children’s consent, and that it was advisable any way, as she did not know what might happen. Ada Mae had attained to the age of 18 on August 26,. just prior to the execution of the deed, and John M. reached his majority on November 20, thereafter. Ada Mae had resided continuously with her mother, and John M. also made his home with her, except when away at school, the training camp at Leon Springs., Texas, and in France. Both of them had been in sympathy and aligned themselves with their mother during the trouble which culminated in a divorce, and remained loyal to her until a short time before bringing this suit. John M. advised with his mother in the matter of divorce and to some extent in the property adjustment which resulted in the conveyance of the property in question by John D. Shackleford to them jointly. Appellee procured a quitclaim deed from Ada Mae to her undivided interest in said property, in the consideration of love and affection, on the 13th day of October, 1917, who was, at the time, residing with her; and from John M. to his undivided interest therein for the same consideration on the first day of December, 1917, while he was on a flying visit to her from the camp in Texas. He had resided in the home with his mother before going to the camp. Both deeds were executed by appellants without independent advice. The deed from Ada Mae was prepared by appellee’s attorney in his office and executed immediately in a nearby notary’s office. The deed from John M. was prepared by himself on a blank warranty deed form procured by him in a down-town abstract office, and signed at home with directions to appellee to take it to a notary and have him fill out the acknowledgment.
Ada Mae testified that her mother possessed a violent temper, dealt harshly with her to such an extent that she had to do whatever her mother wanted her to; that she executed the quitclaim deed to her undivided one-third interest through the persistent entreaties and undue pressure of appellee, continuing daily through a period of about two weeks; that her entreaties partook of the nature of begging or pleading, crying and manifestations of anger; that she said her lawyer advised the execution of the deed, that John M. thought it right and was going to give his interest to her when he came home, that she was keeping up the taxes, repairs and paying off the mortgage, that she cared for her when her father kicked her out, that unless she made the deed she would not be treating her right, and that a refusal to execute it would show that she was under the influence of her father. She denied that she had stated to any one that she had voluntarily executed the deed, but, on the contrary, said that she would not have executed the deed of her own volition. She also testified that she heard most of the conversation between her mother and brother concerning the deed he executed to her, and that the understanding between them was that he should have his interest back when he came home from France; that, when he returned from France, appellee refused to make a deed conveying the property back to them, saying that if we got the property back, it must be through the courts.
John M. Shackleford testified that appellee, his mother, was accustomed to weeping and begging to prevail upon him and his sister to do things they would not otherwise do, and, when she commenced crying and carrying on, she could always get them to do anything she willed; that he came home from the camp at Leon Springs, Texas, on a visit to his mother, arriving at 10 o’clock p. m., November 30; that the next morning his mother urged him to execute a deed to her for his interest in the property, assigning as a reason that he was going away to war and might never return; that, in case of his death, his father would inherit his interest and give her trouble; that, knowing it was the only patrimony he was to get from his father, he was reluctant to convey it away and resented the suggestion of his mother; that she began to weep and entreat, saying: “Yes, you will; yes, you. will; I am in a position I have to have it;” that she continued to cry and beg until he saw no way out of it and yielded on condition she would convey his interest back to him when he returned from France; that he went to France soon afterward, returned in July, 1919, and, desiring to marry and engage in business, first requested, then entreated his mother to. reconvey his interest to him, which she refused to do on the ground that his demand was inspired by his father; that he explained his father had nothing to do with it, but that he wanted the property back because it was his and he needed it, all to no avail.
Ada B. Shackleford, mother of appellants, testified that her attorney advised her to accept the joint deed from her former husband, John D. Shackleford, to the property in consideration that she pay him $350 in cash and assume the payment of the $4,000 mortgage thereon, if she had confidence ‘in her children, the appellants, who were to receive, under the same deed, an undivided two-thirds interest in the property, unencumbered; but also advised that as she was going to put all her money in, the property, it would be best to get a deed from them, conveying their interest to her; that she communicated the advice given her by her attorney to Ada Mae and asked Ada Mae what she thought about it; that Ada Mae told her it was all right, that she should have had the property from the beginning; that nothing more was said about the matter until they went to the attorney’s office to execute the deed; that, before going, she told Ada Mae they had better go down and get it off their hands; that Ada Mae was in a happy mood and perfectly willing; that her at torney asked Ada Mae if she knew what she was doing and Ada Mae responded she did; that, after the deed was prepared, they walked across the hall to a notary’s office, where Ada Mae signed and executed it; that she paid nothing to Ada Mae for it; that she was of opinion that John M. felt as Ada Mae did about it; that she wrote to him concerning the matter and he answered that when he came home they would talk the matter over; that when he came home, they did talk the matter over and he said, “Mother, that is all right, that is the best thing we can do; ” that he remained a day or so, went to Fayetteville, and, when he came back, they talked over his trip to France; that, just after dinner, he started to town, at which time, she requested him not to forget the deed he was going to sign; that he said “All right,” sat'down and wrote it out and signed it at the dinner table; that, after signing it, he remarked that if his father knew that he had conveyed the property to her, he would turn over in his grave; that he instructed her to take it to A. Letzkus, who would acknowledge it; that, in accordance with instructions, she took it to Letzkus and then had it recorded ; that she paid her son nothing for the property; that, before she obtained the deeds from her children, she paid $350 she owed her husband, and $1,000 on the mortgage indebtedness, and had since kept up the interest payments thereon; that, after obtaining the deeds, she expended $1,000 in improvements on the property and had collected and used the room rentals; that, while in France, John M. wrote a letter in which the following paragraph appears: “No, I have not heard a word from Dad in regard to the transaction between you and I concerning that place, and I don’t expect to, either. I think he understands that I knew what I was about, although nothing has been mentioned about it. That is a matter, though, that will be adjusted between he and I when we see each other. I am perfectly satisfied, though, so he can not disagree. You are looking after the place, so that is all that is necessary. I have not forgotten by any means that you are my mother, and that we are per fectly congenial and understand each, other better than those who have broken their ties of relationship. We will take care of that proposition, so don’t worry. We are looking out for each other’s interest—so we are satisfied;” that when her son returned from France in July, 1919, her son demanded a reconveyance of an undivided one-third interest in the property, insisting that it was so understood at the time he conveyed it to her; that he admitted nothing was said to the effect that she should re-convey it to him, but that he understood it that way; that she claimed there was no such understanding and refused to reconvey the property to the appellants. Appellee further stated that her reasons for wanting the deeds from her children were that, if she wanted to borrow money or make improvements, she did not want to ask them about it, and in order to prevent their father from influencing them to lose it.
Eva Shackleford testified that, after John M. returned from France, she heard a conversation between him and his mother, in which he claimed he had deeded it to her so that she, and not his father, might get it in the event he was killed, and that it was his understanding he was to have it back, whether anybody else understood it or not. His mother asked him how he could understand it that way when nothing was said about it, and he replied that he understood it that way, whether anybody else understood it or not. She also testified that, after the institution of this suit, she heard Ada Mae say that she deeded her property to her mother of her own free will and accord.
Mrs. H. B. Johnson testified that she was rooming at the house and Ada Mae came to the room, and, while there, told her she had given the place to her mother; that it was her mother’s place to have it and that she did not want it; that, after the suit was instituted, she told her that “we want the place in our names, so if anything comes up we can use it,” and, in that connection, said her father had told her in case the place was deeded back to her, he would see that her mother always had a home.
Evidence was introduced pro and con to show that after John D. Shackleford discovered that the children had deeded their interests in the property to their mother, he offered Ada Mae $1,000 to get her to deed it back. John D. Shackleford’s explanation in this regard was that he offered to bet his daughter $1,000 she could not get her mother to deed it back, at a time when his daughter claimed that the mother would deed her interest back to her at any time she wanted it.
The record is voluminous and contains much evidence not attempted to be detailed in this opinion. An attempt has been made to glean such evidence only from the record as is responsive to the issue of whether undue influence was used by appellee in procuring the deeds in question from appellants.
The standard governing transactions between parents and children who have recently attained their majorities is a high one. This court said, in the case of Giers v. Hudson, 102 Ark. 232 (quoting syllabi 1 and 2), that: “Where a daughter, though of age, remains under her father’s roof, any contract, conveyance or business transactions between them will be closely scrutinized by the courts.” “A conveyance from a daughter to her father, made while she lived with him, will not be permitted to stand unless the transaction is characterized by the utmost fairness and good faith on the father’s part.” In that ease, the language of Lord Chancellor Cranworth in the case of Savery v. King, 5 H. of L. Cases, 627, was approved as accurately stating the controlling principle in this class of cases. The language of the chancellor was as follows: ‘ ‘ The legal right of a person who has attained his age of twenty-one to execute deeds and deal with his property is indisputable. But where a son, recently after attaining his majority, makes over property to his father without consideration or for an inadequate consideration, a court of equity expects that the father shall be able to justify what has been done; to show, at all events, that the son was really a free agent, that he had adequate independent advice, that he was not taking an imprudent step under parental influence, and that he perfectly understood the nature and extent of the sacrifice he was making, and that he was desirous of making it. ’ ’ It follows from this language that the burden rests upon the parent in this class of cases to clear the transaction of every shadow of suspicion and to establish its. fairness and good faith. The conveyances in the instant case were donations. No consideration was paid for them. They in no way benefited appellants. It is not contended that the consideration was other than love and affection. Such a consideration is sufficient to uphold conveyances, if thoroughly understood and voluntarily made. The conveyances were made only .a short time after appellants attained their respective majorities and while they remained under the mother’s roof. Ada Mae had never resided elsewhere, and John M. only when away at school or in a soldiers’ training camp. The mother had been advised not to assume the indebtedness or make improvements without first obtaining a deed from her children. She wanted the deeds so that she would not have to consult them in ease she wanted to borrow money or make improvements on the property, and for the additional reason that she did not want her husband to control or influence the children in the control or disposition of their undivided interest in the property. She communicated the advice she received from her attorney to each of the children and requested them to make deeds to their undivided interest to her. They received no independent advice concerning the transaction. The only advice or counsel they had was that of the mother. They both swear that she obtained the deeds through undue influence exercised over them by continuous entreaties accompanied by weeping; that, in making the deeds, they yielded unwillingly to the overpowering influence of their mother. She denies their statements, but has no corroboration save that of two witnesses who testify that Ada Mae had told them she voluntarily gave her interest in the property to her mother, and that John M. admitted no definite promise had been made by appellee to deed the property back to him, but that it was only his understanding at the time. Appellee’s testimony thus slightly corroborated, when viewed in the light of appellee’s admission that she had been advised to get a deed from them to the property and that she wanted and asked them for their several interests, is not sufficient to overcome the positive evidence of appellants that they were induced to make the deeds through the constant entreaties and weepings of their mother. The letter written by John M., while in France, to his mother, does not necessarily indicate that he had irrevocably conveyed his interest to her. The letter contains expressions indicative of a contrary purpose, viz: “You are looking after the place, so that is all that is necessary.” “We are looking out for each other’s interest—so we are satisfied.”
For the error indicated, the decree is reversed and the cause remanded with directions to cancel the deeds in question, and for such further proceedings as may be necessary to adjust the equities between the parties not inconsistent with this opinion. | [
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McCulloch, C. J.
Appellant' is a fraternal benefit society, organized under the laws of the State of Arkansas. It does business on what the attorneys in the case designate as the pro rata assessment plan, no surplus funds being accumulated, but the members are grouped together in “circles,” according to age,' and when a death occurs an assessment is levied on the members of the particular circle to which the deceased belonged.
• The policy, or benefit certificate, as well as the bylaws, specify the maximum amount of the benefit to be the sum of $1,000, but the certificate refers to the by-laws, which provide that the association “shall not be liable for the full face value of the certificate unless full and prompt payment of all assessments shall have been made by all members of the group to which the deceased member belonged, and in no event shall said certificate have a- greater value than the amount paid in by the whole membership of said group on the last assessment preceding the death of the insured, after deducting the cost of collecting said assessment. ’ ’
Appellant accepted as a-member Ellen S. Fox and issued a certificate of membership to her, dated July 18, 1916, payable to appellee, who was Mrs. Fox’s granddaughter. Mrs. Fox died in July, 1920, and this action was instituted on February 23, 1921, to recover the full amount ($1,000) mentioned in the benefit certificate.
Appellant pleaded, among other things which are insisted on here as grounds for reversal, that Mrs. Fox misrepresented her age in the application which was made for membership in the society; that-the by-laws did not authorize the issuance of a certificate to persons over sixty years of age, and that Mrs. Fox’s age was above.sixty at the time she joined.
The answer also contained-a denial that the indebtedness amounted to $1,000, if anything at all.
The case was tried before a jury, and the trial resulted in a verdict and judgment in appellee’s favor, for the maximum amount stated in the policy.
It appears from the undisputed evidence adduced in the case that the application of Mrs. Fox was solicited and accepted by J. W. Boyd, who was her son-in-law, and who was appellee’s father. In the application Mrs. Fox’s age was stated at fifty-nine, and there is proof to show that she was about ten years older than that. The testimony is, however, conflicting, and the jury might have found either way as to the question of her age being above sixty.
Mrs. Fox lived with her daughter, Mrs. Boyd, and there is testimony tending to show that she was an invalid at the time she made application for insurance in appellant society.
No testimony was introduced by either party as to what occurred between Boyd and Mrs. Fox at the time the application was made out, appellant contenting itself with attempting to prove that there was a misrepresentation as to Mrs. Fox’s age and that Boyd, her son-in-law, must, in collusion with Mrs. Fox, have participated in the fraudulent misrepresentations.
The court instructed the jury that, if there was a misrepresentation made concerning the age of Mrs. Fox, and if Boyd accepted the application with knowledge of such misrepresentation, appellant would be bound by that knowledge and could not plead the misstatement of age in bar of appellee’s right to recover on the policy. Appellant asked the court to give an instruction stating that if Boyd, as agent, ivas acting fraudulently or collusively, appellant would not be bound by his knowledge and would not be barred from pleading a misstatement as to age.
Appellant, so far as affects the present litigation, does not come within the terms of the statute regulating fraternal benefit societies (Acts of 1917, p.. 2087, Crawford & Moses’ Digest, sec. 6068, et seq.), for the reason that the benefit certificate involved in this case was issued to Mrs. Fox prior to the enactment of the statute, there being no statute at the time expressly restricting the powers of appellant in regard to age of members. The by-laws of the society on that subject could be waived, and were waived, if appellant, with knowledge of the misstatement, accepted the application and issued the certificate to Mrs. Fox and received payment of dues and assessment's. It is unnecessary to determine whether or not appellant falls within the terms of the statute in other réspects, inasmuch as the statute could have no effect on the question of the age of the applicant in this instance.
Appellant invokes the rule laid down by this court in Mutual Aid Union v. Blacknall, 129 Ark. 450, that (quoting from the syllabus) if an agent of an insurance company “in collusion with the applicant, even though acting within the apparent scope of his authority, perpetrates a fraud upon the insurance company by making false and fraudulent representations upon which the insurance is obtained, such fraud will vitiate the policy. ’ ’ There is, we think, no evidence in this case that would justify a submission of the question of fraud on the part of Boyd, the agent. No effort was made to prove what occurred at the time the application was written, and there is no direct proof of fraud, either on the part of Mrs. Fox or Boyd. The most that the testimony tends to establish is ihat there was a misstatement of age. Fraud is not presumed, but must be proved. An inference of fraud may be drawn from proved facts, but here we have no proof that Boyd participated in any intentional misrepresentation as to Mrs. Fox’s age. We think the court was correct in refusing to charge the jury on that subject.
The court also submitted to the jury the issue as to Mrs. Fox’s age, and, as there was testimony sufficient to support a finding either way, the verdict of the jury is conclusive on that issue.
We are of the opinion, however, that the judgment is excessive, and that, according to the undisputed evidence, appellee is only entitled to recover $124.40, “the amount paid in by the whole membership of said group on the last assessment preceding the death of the insured.”
Mr. Judd, who was president of the appellant society at the time of the trial, testified that this was the amount of the last assessment preceding Mrs. Fox’s death, and there is no other testimony on that subject. The by-laws fix the limit of the amount of recovery, and that constitutes the contract between the parties. The by-laws and the benefit certificate fix the maximum amount of the benefit at $1,000, but there is nothing, either in the certificate or the by-laws, which permits the -payment of any benefit in excess of the amount realized under the last assessment preceding the death of the insured.
Counsel for appellant urge that there is no -proof that this was the effect of the by-laws at the time Mrs. Fox’s certificate was in force, but we think the testimony of Judd on that subject is undisputed, and shows that there was always a by-law to that effect.
The amount named above being the limit of appellee’s right of recovery, according to the undisputed evidence, the judgment will be reversed and judgment will be entered here for the amount of $124.40 as of the date of the judgment below. It is so ordered. | [
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Smith,, J.
Appellant was convicted at his trial in the circuit court upon the following indictment:
“The grand jury of the Lake City District of Craig-head County, in the name and by authority of the State of Arkansas, accuse Henry Penn Dyer of the crime of embezzlement, committed as follows, viz: In the district and county aforesáid on the 29th day of September, 1921, the said Henry Penn Dyer, then and there'being above the age of sixteen years, and then and there being the clerk, servant, employee, agent and bailee of th American Railway Express Company, a corporation, and then and there as such clerk, servant, employee and bailee and by virtue of his employment as such, having delivered and intrusted to his possession, care and custody, a check drawn on the Bank of Black Oak, Black Oak, Arkansas, for the sum of forty-two dollars and fifteen cents, of date September 29, 1921, made payable to American Express Company, and drawn by the Merritt Mercantile Company, by T. M. Merritt, and numbered 3871, of the value of $42.15, the property of the said American Railway Express Company, did then and there unlawfully, fraudulently and feloniously embezzle and convert to his own use said check, without the consent of said owner, bailor and employer, against the peace and dignity of the State of Arkansas.”
For the reversal of the judgment it is insisted that the court erred in overruling a demurrer to the indictment, and in refusing to direct a verdict for the defendant, and that there is a variance between proof and the allegations of the indictment.
The indictment in this case was based upon section 2500, C. & M. Digest, but appellant insists that the indictment is bad because it also charges the offense de fined in section 2502, 0. & M. Digest. Appellant was described in the indictment as “being a clerk, servant, employee, agent and bailee,” and the insistence that the offense charged is the one defined in section 2502 is grounded upon the fact that appellant was charged with being a bailee, a class of persons made liable only by section 2502, -C. & M. Digest.
The use of the word bailee was unnecessary to charge the offense defined by section 2500, C. & M. Digest; but we think its use does not operate to charge the offenses defined under that section and also section 2502. The indictment charged appellant was a clerk, servant, employee and agent' of the American Bailway Express Company; and, as such, he was a bailee, and the additional designation of bailee adde'd nothing to the charge. Wright v. State, ante, p. 169.
Appellant was the agent of the American Bailway Express Company at Black.Oak, Arkansas, a small station on the J., L. C. & E. Bailroad, and, as such agent, received a O. O. D. package consigned by the Murray Gin Company, Memphis, Tenn., to the Merritt Mercantile Company, of Black Oak. The -charges .against the package amounted to $42.15. Appellant delivered the package to the consignee, as was his duty to do, and received a check from the consignee for $42.15, which was made payable to the American Express Company. He indorsed the check as follows: “H. P. Dyer, Agent, J., L. C. & E. B. B. Co.,” and cashed it at the Bank of Black Oak, the bank on which it was drawn.
It is insisted that the testimony shows the embezzlement of money, and that there is a variance, inasmuch as the indictment charges the embezzlement of a check. The jury might have so found; but this is not the only, inference deducible from the testimony. It appears from the testimony on the part of the ¡State that the American Bailway Express Company carried express freight, but the American Express Company did not carry freight, and that it was the business of this last-named company to transmit money by express money orders, and otherwise, and that it was appellant’s duty, as agent of those companies, when he received checks in payment of express sent C. O. D., as he did in the instant cáse, to cash the checks and immediately remit the money to the express messenger on the train, and immediately thereafter draw a money order on the American Express Company for the sum collected, less the express charges, and send the same to the consignor. The check cashed and alleged to have been embezzled was the property of the American Railway Express Company, as charged in the indictment, although it was payable to the American Express Company, and it was appellant’s duty to have collected it for the benefit and account of the American Railway Express Company.
We think the testimony warranted a finding by the jury that the check was embezzled as charged in the indictment. The manner in which it was indorsed is itself sufficient evidence of that fact to support the jury’s finding. As has been said, this indorsement was “H. P. Dyer, Agent, J., L. C. & E. R. R. Co.,” a fact from which the jury could have found that appellant had converted the check to his own use as the agent of the J., L. C. & E. R. R. Co. at the time it was cashed.
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Hart, J.
The Arkansas Land & Lumber Company-instituted this action for damages against the Missouri Pacific Railroad Company, St. Louis-San Francisco Railway Company, John Barton Payne, Director General, and John Barton Payne, Federal Agent, to recover damages in the sum of $582.58 on account of the conversion by the defendants of a certain carload of lumber shipped by the plaintiff from Malvern, Ark., to Blackwell, Okla.
The cause of action arose on July 23, 1918, which was during the Federal control of the railways of the United States, and the suit was filed on July 9, 1921. All the defendants at that time were made parties by name, except John Barton Payne was sued as Director General of Railroads and Federal Agent, instead of James C. Davis.
The Missouri Pacific Railway Company and the St. Louis-San Francisco Railroad Company filed demurrers to the complaint.
The defendant, John Barton Payne, as Director General and Federal Agent, filed a plea in abatement, stating that at the time the complaint was filed he was not Director General of Bailroads of the United States.
. On October 10, 1921, the plaintiff made a motion to substitute Jas. C. Davis as Director General of Bail-roads and the agent of the United States under the Federal Transportation Act.
James C. Davis entered his appearance to the cause and pleaded the statute of limitations of three years. The same attorney represented all the defendants.
The court sustained the demurrer of the Missouri Pacific Bailroad Company and of the St. Louis-San Francisco Bailroad Company, and dismissed the complaint as to each of them.
The court also found that the service of summons upon John Barton Payne, as Director General of Bail-roads and Federal Agent, was not a valid service on Jas. C. Davis as Director General of Bailroads and Federal Agent. The court therefore sustained the plea of the statute of limitations of the defendant, and the complaint was dismissed as against the Director General of Bail-roads and Federal Agent appointed by the President under see. 206 of the Transportation Act of Congress of 1920.
From the judgment rendered dismissing his complaint the plaintiff has duly prosecuted an appeal to this court.
The circuit court was right in sustaining the demurrers to the complaint filed by the Missouri Pacific Bail-road Company and the St. Louis-San Francisco Bailroad Company. According to the allegations of the complaint, the cause of action accrued while the railroads in question were operated by the Director General of Bail-roads during the World War.
In Missouri Pacific Railroad Company v. Ault, 256 U. S. 554, the Supreme Court of the United States held that a railroad corporation is not liable, either at common law or under section 10 of the Federal Control Act, upon a cause of action' arising out of the operation of its railroad by the government through, the Director General of Railroads.
We are of the opinion, however, that the court erred in sustaining the plea of the statute of limitations of the Director General of Railroads. The suit was brought against John Barton Payne, as Director General of Railroads, within three years after the cause of action accrued. It was ascertained that he was not the Director General of Railroads at the time the suit was commenced, and James C. Davis, who was the Director General of Railroads at that time, was substituted as defendant in his stead. The judgment of the court below proceeded upon the theory that this was a substitution of a new defendant and was, in fact, the institution of a new action' within the inhibition of the case of Schiele v. Dillard, 94 Ark. 277.
We cannot agree with counsel in this contention. We do not think there was in fact a substitution of parties. The amendment only made specific what was not apparent before, and it is certain from the record that no prejudice resulted to the defendant. This is in application of the well settled doctrine in this State that amendments may be made to correct an error in the name of the defendant. St. L. I. M. & S. Ry. Co. v. Camden Bank, 47 Ark. 541; St. L. I. M. & S. Ry. Co. v. Haist, 71 Ark. 258; Snowden v. Thompson, 106 Ark. 517, and Buckley v. Collins, 119 Ark. 231.
In-the case of Snowden v. Thompson, supra, suit was brought in the name of the directors of a drainage district, who alone were authorized to bring suit for the district, and the court held that the failure to name the district as plaintiff was a defect of form only, 'and that it was the duty of the trial court to permit the complaint to be amended to conform to the statute.
When the United States took over the operation of the railroads during the World War, a Director General' of Railroads was appointed to operate them and suits were authorized to be brought against him and service to be had upon the various agents employed in operát ing the roads, as was the case before the Federal Control Act was passed by Congress.
In the present case service of summons was had upon the station agent in the manner prescribed by law. The station agent was in the employment of the Director General of Railroads. The Director General of Railroads in his official capacity could alone sue and be sued in all matters pertaining to the operation of the railroads under his control. The same attorneys represented all the defendants. The Federal control was exclusive and complete. The Director General was given full power to take possession and operate the railroads to this end. To accomplish this purpose the Director General had control over the existing railroad officials and employees, and they were authorized to continue to perform their duties in accordance with their previous authority. Northern Pac. Ry. Co. v. North Dakota, 250 U. S. 135.
In the original complaint a mistake was made in the name of the Director General, and by correcting this mistake a new suit was not instituted; for the Director General of Railroads, in his official capacity as the representative of the United States, was the real party in interest. Our Civil Code provides that the court may at any time, in the furtherance of justice, amend any pleadipg by correcting a mistake in the name of a party. Crawford & Moses’ Digest, sec. 1239.
In construing a similar provision, the Court of Appeals of Virginia held that, in a suit against an agent designated by the President to defend actions against railroads under Federal control, the plaintiff may amend the declaration by correcting the name of the agent. Bailey v. Hines (Va.), 109 S. E. 470.
So, too, in Payne v. Stockton, 147 Ark. 598, where an action had been brought against the Director General and there was a substitution in the name of the Director General, it was held that no- new service of summons was necessary. The court said that the action was against the United States, and when appearance was entered for Walker D. Hines, as Director General and Special Agent, it was the appearance of the United States, and that the substitution of John Barton Payne for Hines was merely to correct an error in the name of the representative of the United States.
In the application of that doctrine to the present case we are of the opinion that the court below erred in holding that the substitution of Davis for Payne as Director General was in effect the bringing in of a new party to the suit and was tantamount to the bringing of a new suit, so that the action was barred by the three-year statute of limitations.
It follows that the judgment must be reversed, and the cause will be remanded, with directions to overrule the plea of the statute of limitations of the Director General of Eailroads to the complaint, and for further proceedings according to law. | [
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McCulloch, C. J.
Appellant was convicted under an indictment couched in the following language (omitting the caption and formal conclusion):
“The said defendant,’ "Will Earl, in the county, district and State aforesaid, on the 5th .day of December, A. D. 1921, did then and there unlawfully and feloniously have and keep in his possession a still for the purpose of using same for the production of distilled spirits, without registering the same with the proper United States officers as required by law.”
The record of the trial was not preserved by a bill of exceptions, and we can only review the record presented for the purpose of determining whether or not error appears upon its face.
The only ground urged for reversal is that the indictment does not state a public offense.
The statute under which the indictment was preferred reads as follows:
“Sec. 2. No person shall keep in his possession any stillworm or still without registering the same with the proper United States officer, and no person shall set up, to be used as a distillery, any stillworm or substitute therefor, and a still or substitute therefor, such as a kettle, washpot, metal tank, or any other vessel of any kind, for the purpose of using same, or which, after being so set up, may be used for the production of distilled spirits.” Acts 1921, p. 372.
The contention is that the indictment is defective and not in conformity with the statute in that it contains the charge that the unregistered still was kept for use in the production of distilled spirits.
Conceding that such defect can b.e raised here for the first time, the ground of attack upon the indictment is untenable. It is true that the statute makes it an offense for a person to keep an unregistered still or stillworm in 'possession, regardless of intention as to its use, but the additional charge that it was kept for the purpose of using same in the produetion of spirits was mere surplusage, and did not affect the validity of the indictment on the charge óf keeping an unregistered still.
We must assume, in the absence of a bill of exceptions setting forth the record of the trial, that the evidence was sufficient to sustain the verdict, and that no error in the proceedings occurred..
Affirmed. | [
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McCulloch, C. J.
The grand jury of White County returned an indictment against appellant on July 17, 1922, charging him with the crime of murder in the first degree, alleged to have been committed in that county by killing one Harry Benning by shooting him with a pistol, and on the trial of the case he was convicted by the jury and his punishment was fixed at life imprisonment. An appeal has been prosecuted to this court, and the only assignment of error urged here is that the court erred in overruling the motion to quash the indictment. .
The motion which appellant filed before the commencement of the trial alleged that the killing of Benning occurred on a barge in White River at a place where it constituted the boundary between White and Woodruff counties, and that prior to the returning of the indict ment by tbe grand jury in White County appellant had been arrested in Woodruff County upon a warrant issued by a justice of the peace of that county, that he had been incarcerated in jail awaiting the action of the grand jury of Woodruff County until he .was admitted to bail by an order of the chancery court of Woodruff County, and that at the time of the finding of the indictment and of the filing of the motion appellant was under bond for appearance in the Woodruff Circuit Court.
On the trial of the motion it. was admitted by the State, as well as by the accused, that the killing of Benning occurred on a barge in White River which was anchored or tied by a rope to the White County bank of the river. The court overruled the motion and proceeded to trial of the case.
Appellant relies upon the statute which provides that where a river is the boundary between two counties, “the criminal jurisdiction of each county shall embrace offenses committed on the river” (Crawford & Moses’ Digest, sec. 2874), and that when two or more counties, under the provision mentioned, have jurisdiction of the same offense, “the county in which the defendant is first arrested shall proceed to try the offense to the exclusion of the other.” Crawford & Moses’ Digest, sec. 2878. The contention is that, pursuant to the terms of this statute, there was concurrent jurisdiction in the two courts, but that exclusive jurisdiction was obtained by the courts in Woodruff County upon the arrest of appellant.
The first contention of the State in avoidance of the effect of the statute is that, according to the undisputed testimony, the killing of Benning occurred on a boat attached 'to the west bank of the river, which was the White County side of the river, and that, there being no uncertainty as to the location of the place of the killing, and the boundaries of the county being certain, it would be an invasion of the constitutional 'right of an accused person to attempt to confer jurisdiction on a county which did not embrace in its territory the particular spot where the crime was committed. The Attorney General relies upon that provision of the Constitution (art. 2, sec. 10), which provides that in criminal prosecutions “the accused shall enjoy the right to a speedy and public trial by an impartial jury of the county in which the crime was committed.”
The territorial statute enacted in the year 1835 creating the counties of White and Woodruff made the middle of the main channel of White River the line between the two counties, and courts take judicial knowledge of the boundary lines of counties as fixed by statute. Bittle v. Stuart, 34 Ark. 224. Notwithstanding this statute and the constitutional provision similar to the one quoted above, this court, in the case of State v. Rhoda, 23 Ark. 156, upheld the statute which provides that when any offense may be committed on the boundary of two counties, the indictment may be found and trial and conviction had in either of such counties. Crawford & Moses’ Digest, sec. 2869. The doctrine of that case was followed in the case of Dougan v. State, 30 Ark. 41.
Now, if the Legislature could pass a statute conferring criminal jurisdiction on either county where the offense was committed on the line, it could also provide, where the line was a shifting one, such as the channel of a stream of water, that the whole of the body of water should constitute the line for the purpose of conferring criminal jurisdiction. Such is the effect of the statute now under consideration. It makes the whole of White River the boundary line for the purpose of exercising criminal jurisdiction, and an offense committed on any part of the river is, within the meaning of the statute, on the boundary line, and the courts of both counties have concurrent jurisdiction. We have held, in passing upon statutes conferring concurrent jurisdiction on the waters of streams forming the boundary line between this and other States, that such statutes are valid exercises of the legislative power. Brown v. State, 109 Ark 373; Means v. State, 118 Ark. 362; Goodman v. State, 153 Ark. 560. The same principles declared in those cases are con trolling in determlining the validity of the statute now under consideration. "We cannot see any difference in principle in the power of the Legislature to fix concurrent jurisdiction' on the waters of such a stream.
The State relies on Cox v. State, 67 Ark. 462, where the court held that the jurisdiction over an offense committed on a stream which was the boundary line of two counties was vested in the county on whose side of the center of the channel the offense was committed. That decision ignored altogether the statute now under consideration. Nothing was said about the statute in the opinion. That decision, however, is in conflict with the principles announced in the later cases cited above and to which we now adhere.
It is also contended on the part of the State that the statute does not apply to cases where the offense occurred on permanent objects or structures in the channel of the stream, and it is contended that in this instance the offense was committed on a boat which constituted such a permanent structure as a fixture to the bank. The Goodman case, supra, is relied on as supporting that contention, as in that case we held that the statute had no application to an island in the channel' of the river. We do not think, however, that the boat fastened to the bank by ropes constituted a permanent fixture to the bank so as to make it a part of the shore line. We are therefore of the opinion that the statute is valid and applies in the present instance so as to confer jurisdiction upon the courts of either of the adjoining counties.
It does not follow, however, that the jurisdiction of the Woodruff court became exclusive so as to prevent the exercise of jurisdiction by the circuit court of White County. The statute provides, it is true, that “the county in which the defendant is first arrested shall proceed to try the offense, to the exclusion of the others,” but this does not confer an unending jurisdiction in the county where the arrest is first made, for when the proceedings in that county come to an end short of a final judgment, the jurisdiction again becomes concurrent instead of exclusive, and the prosecution may be made in either county. The State has the right to elect in which county the offense may be prosecuted where the jurisdiction is concurrent under the statute, and until the final judgment, which operates as a bar to further prosecution in either county, the State’s right of selection of the forum continues.
The finding of a new indictment and its acceptance by the court in White County was tantamount to an abandonment of the prosecution in Woodruff County and ended the exclusive jurisdiction of the courts in that county. This principle was clearly recognized by this court in the case of Elmore v. State, 45 Ark. 243, where there was concurrent jurisdiction between one of the counties in this State and the United States District Court which exercised jurisdiction over the Indian Territory. This would be true even if the proceedings in Woodruff County had proceeded to the return of an indictment in that court, for the statute provides that the returning of a second indictment against the same person for the same offense operates as a suspension of the first indictment. (Crawford & Moses’ Dig., sec. 3037), and the operation of this statute is not confined to indictments returned in the same court, and its necessary effect is to apply to any courts exercising concurrent jurisdiction over the same thing.
In the present instance the two counties are situated in the same judicial circuit, presided over by the same judge, and in which there is the same prosecuting attorney, and we think that the finding and acceptance of the indictment in White County necessarily implies an abandonment of the prosecution initiated in Woodruff County.
It is unnecessary to determine whether or not this rule would extend to concurrent jurisdiction exercised by two or more counties in separate circuits.
It is urged that hopeless confusion and conflict might arise in the assertion of jurisdiction- by different courts, but the question of hostile exercise of jurisdiction does not arise in the present case, and we may well wait to dispose of such a situation when it arises. It is to be presumed, however, that there will not arise any hostility or conflict in the enforcement of the criminal laws by the different courts and officers of the State charged with the duty of enforcing those laws.
Our conclusion is that there was no error of tire court in overruling the motion to quash the indictment.
There being no other errors claimed by counsel for appellant, the judgment must be affirmed, and it is so ordered.
Wood and Hart, JJ., dissent. | [
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Smith, J.
Appellant was convicted of selling intoxicating liquors, and has appealed.
One J. A. Brooks testified that he lived in Hot Springs, and left his home to spend an idle evening. As he sauntered down the street he met a negro boy, of whom he inquired where a crap game could be found. The boy furnished the information -by conducting Brooks to appellant’s place of business, and upon entering this place Brooks found two negroes shooting craps on a pool table. Brooks participated in that game until three or four other men came in and a game of poker was started. After the poker game had been in progTess for a short time appellant appeared with a bottle of whiskey and sold drinks to the players for twenty-five cents each. Brooks soon bought a second drink, after which he says he bebeeame unconscious, and when he woke the next morning he found he had lost his money, had pawned his watch, and had drawn a check against his bank account for $300. A witness named Sexton corroborated Brooks about the purchase of the whiskey.
This statement of facts answers the assignment of error that the evidence is insufficient to sustain the verdict.
Appellant denied all these facts, although he admitted cashing the check for Brooks, which he says he did as an accommodation, although he stated that Brooks was drunk at the time and he had never seen him. before.
On the cross-examination of appellant he was asked, “Did you not say this: ‘He wrote the check out in my presence and signed it’?” This question appears to have been asked by the prosecuting attorney while examining and apparently reading from the minutes of the grand jury. Objection was made to this question on the ground that by using the grand jury notes appellant had been required to repeat testimony which he gave involuntarily before the grand jury.
This assignment of error may be disposed of by saying that the prosecuting attorney took the stand and testified that appellant told him he wanted to gc before the grand jury and explain the charge against him which he knew was under investigation, and appellant was told that he might do so, but if he did go before the grand jury he would be cross-examined. Under these circumstances there was no error in asking the witness about his testimony before the grand jury. State v. Roberts, 148 Ark. 328, 336; Pinkerton v. State, 126 Ark. 201; Ex parte Butt, 78 Ark. 262; Eastling v. State, 69 Ark. 191.
A motion for continuance was filed on account of the absence of certain witnesses. But these witnesses were nonresidents of the State, and were known to be so by appellant, who was indicted and arrested on the 12th day of January, 1922. His case was continued to the next term and was set and called for trial on the 29th day of March, 1922. No showing was made why the depositions of these nonresident witnesses were not taken, as might have been done.
An exception was saved to the istruction given by the court on the question of reasonable doubt, the objection to the instruction being that it told the jury they must consider all the evidence fully and fairly before they could entertain a reasonable doubt. The portion of the instruction upon which this objection is based reads as follows: “But if, after fully and fairly considering all of the evidence, you entertain a reasonable doubt as to whether or not he sold alcoholic liquors, or was interested in the sale, then it would be your duty to find him not guilty.” We think the instruction a proper one. The jury should consider all the evidence fully and fairly, and this consideration should properly precede the determination of the question of guilt.
It is insisted that error was committed in refusing to permit appellant to read in evidence the testimony of certain witnesses given at the preliminary hearing in the municipal court of Hot Springs, in which appellant was there charged with operating a gambling-house. These were the same witnesses on account of whose absence a continuance was asked. A stenographic report of the testimony of these witnesses had been made at the time, and the stenographer who had reported the case had transcribed his notes and was present to read them; but the court refused to permit this to be done. As has been said, it appeared from the examination of the witnesses in .this preliminary trial that they were nonresidents of the State, and were only temporarily, staying in Hot Springs, yet, as has been said, no attempt had been made to take their depositions. A syllabus in the case of Wimberly v. State, 90 Ark. 514, is applicable here: “Proof of what a witness swore upon a former trial is admissible on a subsequent trial of the same cause if it be shown that he is a nonresident and out of the court’s jurisdiction; but if his place of residence be known, and his testimony can be taken under a commission, it is within the court’s discretion to issue a commission to take his testimony or to admit proof of his former testimony, and the exercise of such discretion is not reviewable save for gross abuse.”.
Moreover, the charge before the municipal court was that of operating a gambling-house, while the charge here is that of selling liquor, and the evidence was excluded by the court on that ground, as is indicated by the remarks of the judge in overruling the motion. It affirmatively ap peared that the prosecuting attorney had dismissed before the municipal court the charge of selling liquor against appellant and was seeking to have appellant bound over- for operating a gambling-house. The charges being different, there was no error in excluding the testimony on that ground. Eyer v. State, 112 Ark. 37; Fox v. State, 102 Ark. 393.
Exceptions were saved to certain remarks of the prosecuting attorney; but after considering them we have soncluded they were matters of declamation or argument and could not have been prejudicial.
No error appearing, the judgment is affirmed. | [
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Hart, J.
(after stating the facts). The first assignment of error is that the court erred in giving instruction No. 10, which is as follows:
“You are instructed that the possession of the property recently stolen, without reasonable explanation of that possession, is evidence which goes to you for your consideration, under all the circumstances of the case, to be weighed as tending to show the guilt of one in whose hands such property is found, but such evidence alone does not imperatively impose upon you the duty of convicting, even though it is not rebutted. ’ ’
Counsel for the defendant relies upon the cases of Duckworth v. State, 83 Ark. 192, and Pearrow v. State, 146 Ark. 182.
An examination of the Duckworth case will show that the instruction condemned was materially different from the one now under consideration. The instruction under consideration in that case was No. 5, and an examination of it shows the vice of it was in the court’s telling the jury that the possession of property recently stolen, unexplained, when corroborated by other evidence, was sufficient to convict, and that if the jury believed from the evidence that the defendant was found in the possession of the goods immediately after the store was burned and that the possession was corroborated by other evidence tending to connect the defendants with the larceny, it should find them guilty.
The court properly held, that this was a charge upon the weight of the evidence and fell within the prohibition of the Constitution. It was not proper to tell the jury that it was their duty to convict the defendants if they were found in the possession of goods recently stolen and that such possession was corroborated by other evidence. It was within the exclusive province o-*2 ‘he jury to pass upon the weight to be given to the -evidence. Here the court went no further than to tell the jury that such evidence was for its consideration. The court also told the jury that such evidence alone did not imperatively impose upon it the duty of convicting, even though such evidence was not rebutted.
While the form of the instruction is faulty in using the word, “imperatively,” before the words, “impose upon you the duty of” etc., in the concluding part of the instruction, still, if counsel for the defendant thought that this made the instruction argumentative, a -specific objection should have been made and the defect pointed out to the court. If this had' been done, doubtless the court would have corrected the form of the instruction to meet the objection made to it.
So, too, in the Pearrow case the trial court erred in telling the jury that the possession of property recently stolen and unexplained by the defendant afforded presumptive evidence of his guilt. This was a charge upon the weight of the evidence and fell within the ban of the Constitution.
As we have already stated, no. such vice appears in the instruction quoted above, and we hold that the assignment of error is not well taken.
The court did not err in refusing an instruction asked by the defendant on this point, because the instruction asked was sufficiently covered by the instruction given, and the court is not required to multiply instructions on the same point.
Again, it is insisted that the -court erred in allowing the State to ask the defendants if they had not recently been engaged in the business of selling whiskey.
There was no error in this regard. It is against the law to-sell whiskey, and the accused in a criminal case may, for the purpose of testing his credibility, be questioned on cross-examination as to his having been a gambler and as to other offenses and immoralities. Shinn v. State, 150 Ark. 215.
The indictment against George Barron charged the ownership of the property stolen in Ab Stewart, and the indictment against Earnest Barron charged the ownership in Ad Stewart. This court has repeatedly held that in an indictment for larceny the allegation of ownership is material and must be proved as alleged. • It appears from the record that Ab Stewart was the owner of the cattle stolen.
In. Mooney v. State, 137 Ark. 410, it was held that there was sufficient similarity in the sound of the names “Fincher” and “Fancher” to bring the case within the well recognized doctrine of idem sonans. So here the words “Ab” and “Ad” bring the case within this rule.
The next assignment of error is that the court erred in refusing to allow Allie Reed t'o testify that he had bought cattle from a dark-complexioned fellow weighing about 180 pounds, and that the cattle which he purchased turned out to have been stolen from one of his neighbors.
The defense was that the defendants had bought the stolen cattle in the present case from a large-sized dark-complexioned man, and they contend that the testimony of Allie Reed was competent to corroborate their testimony.
In the first place, the occurrence testified to by Allie Reed happened about two years before the Barron boys were charged with stealing the cattle in the present case. It was therefore too remote in point of time to be of any value as corroborating testimony.
In the next place, the evidence is too general. Testimony that Reed bought cattle from a dark-complexioned man, heavy in weight, does not establish the fact that the defendants also bought cattle from that man. There is nothing in the record even to show that the men were the same ones, and the testimony of Reed shows that the cattle he bought did not belong to Stewart but to another man in the neighborhood.
The same assignment of error is made with regard to the testimony of Jim Melton, which was also excluded from the jury for the same reason.
It follows that the judgment must be affirmed. | [
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Hart, J.
(after stating the facts). Locke was charged with a violation of ordinance 1203 of the city of Fort Smith. Section one of the ordinance reads as follows : ‘ ‘ That it shall be unlawful for any person, firm or corporation or association in any manner to transport into the city, or from one place to another place in the city, or for any railroad company, or express company or other common carrier, or any officer, ag’ent or employee of any of them, or any other person, to ship or transport into, or deliver in the city in any manner, or by any means whatsoever, any alcoholic, vinous, malt, spirituous or fermented liquors, or any compound or preparation thereof commonly called tonics, bitters, medicated liquors, except as provided for in section sixteen.”
The ordinance is substantially a copy of see. 6165 of Crawford & Moses’ Digest made applicable to a city. The dictionary meaning of the word “transport” is to carry or convey from one place or station to another. The language of the statute makes it unlawful to transport intoxicating liquors from one place to another place in this State. '
The language of the ordinance makes it unlawful for any person to transport into or from one place to another place in the city intoxicating liquors.
From the language used the court is of the opinion that the Legislature only intended to make criminal the removal of intoxicating liquors from one locality in the State, or in a city or county, to another locality in the State, or city or county. These places must he separate and distinct from each other, or the offense under the statute is not complete. To constitute the offense the liquor must he in the act of being conveyed from one objective point to another. The name of one or even both of the places might be unknown, but it must be shown, inferentially at least, that the defendant was in the act of carrying the intoxicating liquor from one place or locality to another in order to render him guilty under the statute, or under an ordinance based upon the statute. We think this holding is in accord with Hager v. State, 141 Ark. 419.
Tested by this rule, the evidence introduced by the city is not legally sufficient to warrant a verdict of guilty. When considered in its strongest light, the evidence only shows that the defendant, at the earnest solicitation of a friend, got into the latter’s automobile for the purpose of riding about the streets of Fort Smith. The defendant ascertained that his friend was drinking, and formed the intention of getting him to go home as soon as he could. He also pul one of the bottles of whiskey he found on the seat of the automobile in his pocket, while the owner of the automobile put the other one in his pocket. The' evidence falls short of showing, however, that the defendant got into the automobile for the purpose of carrying or assisting his friend in conveying the liquor from that place to the home of the defendant’s friend. The main purpose of getting in the automobile by the defendant was to take a ride over the streets of the city with his friend, and the design of taking his friend home, as soon as he could get him to go, was formed because his friend was drunk, and not for the purpose of assisting him in carrying home the two bottles of whiskey.
It follows that the judgment must be reversed, and, inasmuch as the facts seem to have been fully developed, the cause will be remanded, with directions to dismiss the charge against the defendant. | [
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Hart, J.
Annie Snyder prosecutes this appeal to reverse a judgment of conviction against her for voluntary manslaughter charged to have been committed by killing Thos. Stovall in Pulaski County, Ark.
This is the second appeal in the case. See Snyder v. State, 151 Ark. 601. Upon the former appeal the judgment was reversed for the reason that the trial court accepted a jur or who was disqualified because he had a fixed opinion on the merits of the case, based upon a statement of facts by the witnesses on both sides.
Upon the re-trial of the case the cqurt gave to the jury the same instructions as upon the original trial. It is now insisted that the court erred in giving instruction No. 18,' which reads as follows:
“You understand that, in the event of a conviction and a term of imprisonment, the imprisonment will not be in the State Penitentiary, but in the Women’s Reformatory or institution near Jacksonville in this county.” The record also shows the following:
“The defendant at the time objected to instruction No. 18, as given to the ju-ry, objected to the giving of same, which objection was by the court overruled, to which ruling of the court the defendant at the time excepted, and asked that her exceptions be noted of record, which was accordingly done.”
The court added the following: “Mr. Rhoton says that exceptions to all instructions were saved, which the court does not sufficiently remember to affirm or deny.” After copying this statement into the record, the trial judge signed the bill of exceptions which contained the recitals above set forth with regard to giving instruction No. 18.
It is contended by the Attorney General that .the added statement by the trial judge had the effect to show that no exceptions were saved to the giving of instruction No. 18.
We cannot agree with him in this contention. The bill of exceptions as signed by the trial judge expressly recites that an objection was made to the giving of the instruction, and that exceptions were saved to the ruling of the trial court in giving* it. This affirmative showing* of the record could not be abrogated by the mere remark of the trial judge that he did not remember whether or not Mr. Rhoton had saved exceptions to the giving of the instruction. The fact that the trial judge signed the bill of exceptions containing an affirmative showing that exceptions were duly saved to the giving of the instruction, must control here. If the trial judge wished to change the bill of exceptions so as to eliminate the fact that exceptions had not been saved to the giving of instruction No. 18, he should have done so by marking out the language showing* that such exceptions were saved, or he should have, by appropriate language, so indicated. Having allowed the record to remain as prepared and presented to him, he could not eliminate the exceptions by a simple statement that he did not remember about the matter.
Because the record contains an affirmative statement that exceptions were saved to the giving of the instruction, we must consider the assignment of error based upon the court giving the instruction., This being so, it is conceded bv the Attorney General that the- giving of the instruction was erroneous and prejudicial within the rule announced in Pittman v. State, 84 Ark. 292; Bird v. State, 154 Ark. 297, and Mitchell v. State, ante, p. 413.
Our attentioxx was not called to any alleged errors in the instructions upon the fox*mer appeal, and for that reasoxi we did xxot discuss or consider them.
Therefore, for the error ixx giving iixstx-uction No. 18, the judgment must be reversed, and the cause remanded for a new trial. | [
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COURTNEY HUDSON HENRY, Judge.
| Appellants Shelby and Linda Barnett appeal the trial court’s decision in favor of appellee Wanda Stafford on her complaint alleging trespass. For reversal, the Bar-netts contend that the trial court erred in finding that they had not proven their claims of adverse possession or a boundary by acquiescence. We affirm.
This case began with a complaint brought by Keith Gomance against the Barnetts to establish an easement by necessity to property owned by Gomance. The litigation evolved into a boundary-line dispute between the Barnetts and Wanda Stafford, Keith Gomance’s mother. Stafford and the Barnetts are adjacent landowners in Garland County, and Stafford’s property lies to the east of the Barnetts’ land. Stafford and her then-husband, Dale Gomance, acquired the property in 1968. In 1966, Stafford obtained title solely in her name. The Barnetts purchased their property in November of 1997 from Jerry and Barbara Bethurum. |2Prior to that, Hubert Sorrells owned the Barnetts’ land. Keith Gomance currently resides on Stafford’s property.
The focus of this case centers on a wire fence that has been in existence for many years. It is undisputed that the fence is not on the true boundary line separating Stafford’s and the Barnetts’ properties. Instead, it lies some thirty feet inside Stafford’s property. As her claim of trespass, Stafford alleged that the Barnetts had erected a new fence on the old fence line, which she claimed was entirely on her property. Appellants defended on the ground that they had acquired ownership of the property to the old-wire fence by adverse possession. In a post-trial brief, appellants also asserted that the fence had become the parties’ boundary by acquiescence.
At trial, Stafford testified that her land is part pasture and part timber. The south fork of the Saline River lies on the southern portion of the property. Stafford said that there was an old fence in the area that she had been aware of for about forty years. She testified that it was “just an old piece of a fence” that was “never taken care of.” Stafford stated that Hubert Sor-rells, appellants’ predecessor in title, had run cattle and had pastured his land up to the old fence.
Keith Gomance testified that he had lived on his mother’s property for forty-four years. He recalled that there was a fence on the boundary line when his father and Hubert Sorrells owned the respective properties. Gomance said that the fence fell down every time the Saline River flooded and that it completely washed away during one particularly heavy | sflood. He testified that both his father and Sor-rells had cattle and that, after this flood, his father gave Sorrells permission to nail wire to the trees to keep their cattle separated, rather than incur the cost of rebuilding a fence on the boundary line whenever the river flooded. Gomance said that the wire was not straight and that it extended from tree to tree for about one hundred feet and that they also relied on a “big wash” to contain their cattle the rest of the way. He stated that it was a courtesy fence and that everybody knew that the property line was where the original fence had stood. He added that the property had been surveyed three times in the intervening years. Gomance maintained that appellant Shelby Barnett also knew the location of the boundary line. He recounted a conversation he had with Barnett during which Barnett “pointed from north to south and told me he knew exactly where the line was.” Gomance said that the area Barnett indicated coincided with the location of the original fence that kept washing away.
Shelby Barnett testified that he and his wife bought the land to use as a cattle farm. He said that the fence was there when they purchased the property and that the wire was attached to a couple of large sycamore trees and a pine tree. He said that the wire was old and had grown into the trees six to eight inches. Barnett testified that he considered his eastern boundary to be the fence line. He said that he had maintained the old fence when it needed repair and that he had cut hay and grazed cattle to the fence since he bought the property. He also stated that he built the new fence to contain his cattle after the old one was destroyed when a debris pile that Keith Gomance stacked on the fence caught fire.
UBarnett further testified that there was a gap in the wire fence when he purchased the property, which he assumed was there to allow access between the properties. He also said that he requisitioned John Williams to perform a survey when he bought the property. Barnett testified that he was familiar with the boundary line shown by Williams on the survey, but he said that he disagreed with Williams’s conclusions.
In rebuttal, Stafford’s husband, Billy, testified that he had discussed the boundary with Mr. Barnett. Billy said that Barnett acknowledged that the wire fence was not the boundary line. John Williams also testified that he prepared surveys of the boundary line in 1997 for the Barnetts and in 2005 for Stafford. He stated that the old fence was not on the true boundary line.
At the conclusion of the testimony, the trial court asked the parties to submit simultaneous letter briefs. In a letter opinion, the trial court ruled in Stafford’s favor, finding “that the preponderance of the evidence shows that the [Barnetts] failed to comply with A.C.A. § 18-11-106 and failed to show that the use by the [Barnetts] was notorious, hostile, and exclusive or that the [Barnetts] had taken any action to put [Stafford] on notice that they were seeking to convert the permissive use into a claim of ownership.” The court subsequently entered an order reflecting its decision.
The Barnetts promptly filed a motion objecting to the entry of the order, arguing that the requirements of the statute cited by the trial court did not apply under the facts of this case. The trial court issued another letter opinion addressing this motion. The court adhered [ 5to its ruling with regard to the statute but stated that its emphasis was on the failure of the Barnetts to offer proof of notorious, hostile, and exclusive possession, as well as their failure to submit evidence of any attempt to convert a permissive use into a claim of ownership. The court also noted that the Barnetts presented no proof that any of the Barnetts’ predecessors in title considered the fence to be the boundary.
The Barnetts subsequently filed an additional motion requesting a new trial. They argued that the trial court’s decision was contrary to the law of adverse possession and the law pertaining to the establishment of a boundary by acquiescence. The trial court entered an order denying the Barnetts’ motion in its entirety, thereby rejecting the Barnetts’ arguments with regard to both adverse possession and boundary by acquiescence. The Barnetts then filed a notice of appeal.
In the appeal that followed, we dismissed for the lack of a final order because the trial court had not disposed of Stafford’s claim for damages. Barnett v. Gomance, 2009 Ark. App. 104, 2009 WL 401611 (unpublished). Following our dismissal, the trial court entered a final order from which the Barnetts bring the present appeal.
Boundary by acquiescence
The Barnetts argue that the long-term existence of the wire fence and the landowners’ usage of their respective properties to the fence line established that the fence had become the boundary between the properties by acquiescence. Stafford responds to this argument on the | ^merits, but she also argues that this issue is not properly before us because it was not raised in the pleadings before trial. We discuss Stafford’s preliminary issue first.
In their answer to Stafford’s complaint alleging trespass, the Barnetts defended on the ground of adverse possession. In their post-trial brief, the Barnetts asserted the doctrine of boundary by acquiescence in addition to their claim of adverse possession. Stafford addressed the boundary-by-acquiescence claim in her post-trial brief without raising any objection that the issue had not been pled. Rule 15(b) of the Arkansas Rules of Civil Procedure allows for the amendment of the pleadings to conform to the evidence introduced at trial. The rule is liberal in its allowance of amendments to conform pleadings to proof and even contemplates an amendment after judgment. Hope v. Hope, 333 Ark. 324, 969 S.W.2d 633 (1998). Even if no amendment is made, it does not affect the trial of issues not raised in the pleadings, as permitting the introduction of proof on an issue not raised in the pleadings constitutes an implied consent to trial on that issue. Id. Here, the Barnetts both submitted evidence on the issue and presented their argument in a post-trial brief without objection from Stafford. Thus, we disagree with Stafford’s contention that the issue was not properly raised, and we proceed to a discussion of this point.
A fence, by acquiescence, may become the accepted boundary even though it is contrary to the survey line. Summers v. Dietsch, 41 Ark.App. 52, 849 S.W.2d 3 (1993). When adjoining landowners occupy their respective premises up to the line they mutually recognize and acquiesce in as the boundary for a long period of time, they and their grantees |7are precluded from claiming that the boundary thus recognized and acquiesced in is not the true one, although it may not be. Clark v. Casebier, 92 Ark.App. 472, 215 S.W.3d 684 (2005). A boundary line by acquiescence is inferred from the landowners’ conduct over many years so as to imply the existence of an agreement about the location of the boundary line. Hedger Bros. Cement & Materials, Inc. v. Stump, 69 Ark.App. 219, 10 S.W.3d 926 (2000). It is the agreement and acquiescence, not the fence itself, that controls. Camp v. Liberatore, 1 Ark.App. 300, 615 S.W.2d 401 (1981). The intention of the parties and the significance they attach to the fence, rather than its location or condition, is what is to be considered. Id. Neither a prior dispute about the boundary line, nor adverse usage up to a fence are required to establish a boundary by acquiescence. Myers v. Yingling, 372 Ark. 523, 279 S.W.3d 83 (2008).
We have noted that the mere existence of a fence, without evidence of mutual recognition, cannot sustain a finding of such a boundary. Robertson v. Lees, 87 Ark.App. 172, 189 S.W.3d 463 (2004). See also Warren v. Collier, 262 Ark. 656, 559 S.W.2d 927 (1978); Fish v. Bush, 253 Ark. 27, 484 S.W.2d 525 (1972); Carney v. Barnes, 235 Ark. 887, 363 S.W.2d 417 (1962). Also, the fact that a landowner puts a fence inside his boundary line does not mean that he is acquiescing in the fence as the boundary, thereby losing title to the strip on the other side. Robertson, supra. That occurs only if the neighbor takes possession and holds it for the requisite number of years. Avington v. Newborn, 271 Ark. 648, 609 S.W.2d 678 (Ark.App.1981); Carney, supra.
| ^Because the location of a boundary is a disputed question of fact, we will affirm unless the trial court’s finding is clearly against the preponderance of the evidence. Myers, supra. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite conviction that a mistake was committed. Hedger Bros. Cement & Materials, supra. Whether a boundary line by acquiescence exists is to be determined from the evidence in each individual case. Boyette v. Vogelpohl, 92 Ark.App. 436, 214 S.W.3d 874 (2005).
In the case at bar, there was positive testimony that the old fence was not considered the boundary line. The trial court accepted as convincing Keith Gomance’s testimony that the fence was placed in its present location only as a matter of convenience and that all concerned understood that the fence was not the boundary line. The Barnetts presented no countervailing testimony to show that this understanding was not shared by their predecessors in title. In sum, the evidence shows no prior acquiescence or mutual recognition that the fence was the boundary separating the properties. Additionally, the Barnetts’ own survey showed the location of the boundary line. Keith Gomance and Mr. Stafford also testified that Mr. Barnett knew that the fence was not the boundary. Although Mr. Barnett asserted that he considered the fence to be the boundary, this assertion was contradicted by his own survey and the testimony of Keith Gomance and Mr. Stafford. The trial court reconciled this conflict in the testimony in Stafford’s favor. In our view, the trial court’s decision on this issue is not clearly erroneous.
IsAdverse possession
The trial court in this instance found that the Barnetts not only failed to meet their burden of proving the common-law elements of adverse possession but that they also failed to satisfy the requirements of Arkansas Code Annotated section 18-11-106 (Supp.2009), because they introduced no evidence that they had paid their ad valorem taxes. The Barnetts take issue with both findings.
To prove the common-law elements of adverse possession, the claimant must show that he has been in possession of the property continuously for more than seven years and that his possession has been visible, notorious, distinct, exclusive, hostile, and with the intent to hold against the true owner. White River Levee Dist. v. Reidhar, 76 Ark.App. 225, 61 S.W.3d 235 (2001). We also note that a claimant may “tack on” the adverse possession time of an immediate predecessor in title. Id. The Arkansas General Assembly amended the statutory requirements for proof of adverse possession in Act 776 of 1995, now codified at Arkansas Code Annotated section 18-11-106. Schrader v. Schrader, 81 Ark.App. 343, 101 S.W.3d 873 (2003). In order for a claimant to establish adverse possession under this law, the claimant must prove color of title and payment of ad valorem taxes, in addition to the common-law elements of adverse possession. Jones v. Barger, 67 Ark.App. 337, 1 S.W.3d 31 (1999). Equity cases are reviewed de novo on appeal. Reidhar, supra. We do not reverse the trial court’s findings unless they are clearly erroneous. Id.
|inIn Schrader, supra, we held that the amendment to Arkansas Code Annotated section 18-11-106 did not apply to landowners whose claims of adverse possession had vested prior to the enactment of the amendment. Consequently, the question here is whether the Barnetts’ claim ripened prior to the amendment of the statute. We hold that it did not.
The Barnetts purchased their property in 1997. Therefore, in order for the Barnetts to avoid the application of the 1995 amendment, they were required to prove that their predecessors in title had adversely possessed the property prior to their ownership. As brought out in the previous point, the use and possession of the Barnetts’ predecessors in title began with permission. However, if the original use and possession was permissive, it cannot become adverse until notice of the hostility of the possessor’s holding has been brought home to the owner by actual notice or by a holding so open and notorious as to raise a presumption of notice equivalent to actual notice. Mikel v. The Development Co., 269 Ark. 365, 602 S.W.2d 630 (1980). Such possession does not ripen into title by lapse of time, unless notice was in some way brought home to the true owner that the occupancy had changed from a permissive use for the convenience of the parties into a hostile use. Avington, supra; Dial v. Armstrong, 195 Ark. 621, 113 S.W.2d 503 (1938). Here, the Barnetts offered no evidence that any of the previous owners held the property so openly, notoriously, and with the necessary hostility as to give notice of an adverse claim.
We also observe that where the use begins with permission, the presumption is that his subsequent possession and that of those claiming under him is also permissive. See Mikel, 11supra; Thomas v. Stobaugh, 244 Ark. 787, 427 S.W.2d 170 (1968); McWilliams v. Schmidt, 76 Ark. App. 173, 61 S.W.3d 898 (2001). The Bar-netts contend that this presumption applies only to family members in a chain of title and that they, as strangers, cannot be bound by the original arrangement. However, we do not read into the law any such limitation because the presumption has been applied in cases that do not involve family members. See, e.g., Mikel, supra; Stobaugh, supra.
Based on these authorities and the evidence, we conclude that the trial court’s ruling that the Barnetts were required to comply with the statute and that they failed to submit evidence showing the payment of ad valorem taxes is not clearly erroneous. We note that the Barnetts sought to cure this deficiency in the evidence by attaching proof of payment as exhibits to their motion for a new trial. However, such evidence cannot be used as a basis for a new trial, because a motion for a new trial cannot be used to bring into the record that which does not otherwise appear in the record. Slaton v. Slaton, 330 Ark. 287, 956 S.W.2d 150 (1997); Sharp County v. Northeast Ark. Planning and Consulting Co., 269 Ark. 336, 602 S.W.2d 627 (1980); Stickels v. Heckel, 2009 Ark. App. 829, 370 S.W.3d 857; Whisnant v. Whisnant, 68 Ark.App. 298, 6 S.W.3d 808 (1999). Thus, the Barnetts’ belated attempt to place this evidence in the record was untimely and could not be considered by the trial court or this court on appeal.
We affirm the trial court’s decision.
Affirmed.
HART and KINARD, JJ., agree. | [
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COURTNEY HUDSON HENRY, Judge.
|! This is an appeal from a decree entered by the Carroll County Circuit Court granting appellee Karen Coatney’s counterclaim for divorce against appellant Larry Coatney. At issue is the trial court’s division of property; Larry appeals, while Karen cross-appeals. We affirm in both regards.
Larry and Karen married in May of 1992 and separated on February 18, 2005. Prior to the marriage, Larry resided in a trailer on a sixty-acre tract of land owned by his mother, and he operated a cattle farm on the property. Karen owned three houses in Oklahoma that she acquired in a previous divorce. In 1994, Karen sold one of those houses, and the parties used the proceeds of that transaction to purchase a large mobile home and to construct a concrete pad for it on the sixty-acre tract. The title to the mobile home listed both parties. Shortly | ^thereafter, Larry’s mother conveyed the tract to Larry as a gift. During the marriage, the parties made other improvements to the property as well. They constructed an airplane hangar and a landing strip; erected fences, cattle guards, and a corral; added a well house; built a 1,560 square-foot deck for the mobile home; improved an existing shop building; and had dozer work done and gravel laid.
In 2001, Larry exchanged with a neighbor a portion of the sixty-acre tract for a 1.44-acre parcel that adjoins the sixty-acre tract. The neighbor conveyed the 1.44-acre parcel to Larry and Karen as tenants by the entirety. In 2004, Larry’s mother gave him the one-acre tract where she lived. Before Larry’s mother die d, she transferred $14,500 to the parties, which they placed in a joint account at a credit union.
According to Larry, he obtained a $15,000 loan from his mother for the cattle operation in 1990, and he had seventeen cow/calf pairs at the time of the marriage. Throughout the marriage, Larry bought and sold cattle, and he satisfied the loan from his mother during the marriage. He placed the earnings of the business in a farm account and paid expenses for the operation out of this farm account. When the parties married, Larry added Karen’s name to this account. While the divorce was pending, the trial court authorized the sale of the entire herd due to a drought, and the net proceeds of $27,859.61 were deposited into the registry of the court.
| sIn addition to the cattle operation, Larry worked for Tyson Foods, Inc., and his latest available W-2 for 2002 reflected gross wages of $34,000 per year. He projected that his annual salary in 2008 would be $50,000. Larry testified that he deposited his paychecks into the farm account from which marital expenses were also paid. Larry also held stock and had a retirement account at Tyson that was valued at $82,000. Karen worked at Rock-Tenn Company until 2000, and she also bought and sold items on eBay. In 2002, she applied for and was later granted social security disability benefits for ruptured discs in her back. As a result, she received a lump-sum payment of $34,000 in past-due benefits and received $879 per month in disability income. Karen testified that she is not eligible for Medicaid and that her medical expenses exceed her income.
During the marriage, Larry built, bought, and sold airplanes. At the time of the divorce, he owned an RV6 that he assembled from a kit. Larry testified that this plane was worth $20,000, but he claimed that he could not sell it due to concerns about liability. He once owned a Kit Fox plane that he sold, and in February 2005, he sold a 1957 Cessna. Larry testified that he sold the Cessna for $15,000 and that he had retained the proceeds of the sale.
In the decree, the trial court divided the property as follows. The trial court found that the 1.44-acre tract titled in both parties’ names was marital property but that the one-acre tract Larry’s mother gave him was nonmarital property. The trial court also ruled that the homes Karen owned in Oklahoma were nonmarital property. The court found that the sixty-acre tract was a gift to Larry from his mother but that the property had lost its status as nonmarital property because of the substantial improvements made to the property with marital funds and | ¿Karen's non-marital funds. The trial court rejected Karen’s claim that Larry agreed to add her name to the title if she bought the new mobile home but found that it would be inequitable to award the property solely to Larry. The trial court ordered the property to be sold and the proceeds equally divided, finding that the evidence did not establish either the value of the property without the improvements or the value of the improvements. The trial court awarded the proceeds from the sale of the herd to Larry as his nonmarital property. The court also awarded Larry the RV6 airplane and the proceeds from the sale of the Cessna as his separate property. The trial court found that the $14,500 transfer of money from Larry’s mother was a gift to Larry and thus nonmarital property. The court determined that Karen was entitled to one-half of the $12,000 Larry had in cash and that Karén would retain the items she purchased on eBay. The trial court also equally divided the parties’ various retirement and savings accounts, as well as vehicles, tools, lawnmowers, and other items of personal property. Finally, the court ordered Larry to pay Karen alimony in the amount of $770 a month until he reaches the age of sixty-seven.
Both parties filed motions for reconsideration. The trial court addressed the motions in an amended decree that further set out the court’s reasons underlying the division of property. With regard to the sixty acres, the court rejected Larry’s contention that the mobile home was a gift to him from Karen, and the court found that the mobile home was not severable from the real property. The court ruled that the improvements made to the property substantially increased its value and that the increase in value was marital property under the “active appreciation” analysis enunciated by the supreme court, citing Brown v. Brown, 373 Ark. 333, 284 S.W.3d 17 (2008). The court also denied Karen’s request for the court to reconsider awarding Larry the airplanes and the proceeds of the cattle sale. The court stated that it took these matters into account when awarding Karen the interest in the sixty acres and in determining the amount of alimony she was to receive. The trial court granted Karen’s request to award her $8,500 of the $19,000 Larry realized upon the sale of stock shortly after the separation. This appeal followed.
Larry’s appeal
Larry argues that the trial court erred in awarding Karen any interest in the sixty-acre tract. He contends that the property was a gift to him from his mother and thus excluded from the definition of marital property and that Karen failed in her burden of proving the value of her interest in the property. Larry also argues that the trial court erred by unequally dividing the marital property without explaining its reasons for doing so.
Under Arkansas Code Annotated section 9-12-315(a) (Repl.2009), all marital property shall be divided equally between the parties unless the trial court finds that such a distribution would be inequitable. In that event, the court is to make some other division that the court deems equitable, taking into consideration a number of factors: the length of the marriage; age, health, and station in life of the parties; occupation of the parties; amount and sources of income; vocational skills; em-ployability; estate, liabilities, and needs of each party and opportunity of each for further acquisition of capital assets and income; contribution of each party in acquisition, preservation, and appreciation of marital property, including services as a homemaker; and the federal income tax consequences of the court’s division of property. ArkjCode6 Ann. § 9-12-315(a)(1)(A). We have consistently interpreted section 9-12-315(a) as granting the trial court broad powers in distributing both nonmarital and marital property. Farrell v. Farrell, 365 Ark. 465, 231 S.W.3d 619 (2006). The overriding purpose of section 9-12-315 is to enable the court to make a division of property that is fair and equitable under the specific circumstances. Keathley v. Keathley, 76 Ark. App. 150, 61 S.W.3d 219 (2001). The statute does not compel mathematical precision in the distribution of property; it simply requires that marital property be distributed equitably. Copeland v. Copeland, 84 Ark. App. 303, 139 S.W.3d 145 (2003).
Section 9-12-315 excludes from the definition of marital property that which is “acquired prior to the marriage or by gift or by reasons of the death of another, including, but not limited to, life insurance proceeds, payments made under a deferred compensation plan, or an individual retirement account, and property acquired by right of survivorship, by a trust distribution, by bequest or inheritance, or by a payable on death or a transfer on death arrangement.” Ark.Code Ann. § 9-12-315(b)(1). The definition of marital property also does not include the increase in value of property acquired prior to the marriage or by gift. Ark.Code Ann. § 9-12 — 315(b)(5). However, our case law has articulated an exception to this rule for the active appreciation of nonmarital assets. Brown, supra. This exception originated with the supreme court’s decision in Layman v. Layman, 292 Ark. 539, 543, 731 S.W.2d 771, 774 (1987), where the court recognized that “when one spouse makes significant contributions of time, effort and skill which are directly attributable to the increase in value of nonmarital property ... the presumption arises that such increase belongs to the marital estate.” The Lsupreme court affirmed this rule under the current version of the statute in Farrell, supra, wherein the court stated that “we follow an ‘active appreciation’ analysis in determining if one spouse’s efforts significantly contributed to the increase in value of nonmarital assets.” Farrell, 365 Ark. at 476, 281 S.W.3d at 627. In Smith v. Smith, 32 Ark. App. 175, 798 S.W.2d 442 (1990), we upheld the trial court’s decision to award a non-owning spouse an interest in the increased value of a nonmarital asset where the non-owning spouse’s efforts contributed to the asset’s increased value.
In addition, we have long held that a non-owning spouse is entitled to some benefit when marital funds have been expended to improve or reduce the debt on the other spouse’s nonmarital property. Poole v. Poole, 2009 Ark. App. 860, 372 S.W.3d 420 See also Box v. Box, 312 Ark. 550, 851 S.W.2d 437 (1993); Williford v. Williford, 280 Ark. 71, 655 S.W.2d 398 (1983); Camp v. Camp, 18 Ark. App. 87, 710 S.W.2d 842 (1986). Even in the absence of proof that marital expenditures reduced the debt or increased the value of nonmarital property, a non-owning spouse is entitled to have the trial court consider the contribution of marital funds when balancing the equities in the property division. Ransom v. Ransom, 2009 Ark. App. 273, 309 S.W.3d 204; Powell v. Powell, 82 Ark. App. 17, 110 S.W.3d 290 (2003). With respect to the division of property in a divorce case, the appellate court reviews the trial court’s findings of fact and affirms them unless they are clearly erroneous. Rasberry v. Rasberry, 2009 Ark. App. 594, 331 S.W.3d 231. A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with a definite and firm conviction that a mistake has been committed. Conlee v. Conlee, 370 Ark. 89, 257 S.W.3d 543 (2007). We give due deference to the trial court’s |ssuperior position to determine the credibility of witnesses and the weight to be given their testimony. Id.
In the present case, the record reflects that Karen sold a nonmarital house for $65,000, and she used the money to purchase a $45,000 mobile home and to build a concrete pad for $13,500. The axle and wheels of the mobile home were removed, and it was anchored in eight places and was situated on three tiers of decorative blocks. Over the years, the parties made extensive improvements to the land, and the trial court could find that Karen’s nonmarital funds and marital funds were expended to make these improvements. Consequently, the record supports the trial court’s decision that Karen was entitled to an interest in the property. Given the substantial improvements made to the land with marital and Karen’s nonmarital funds, the trial court reached an equitable decision by ordering the property to be sold. We are not able to say that the trial court’s handling of this property is clearly erroneous.
Larry relies heavily on the decision in Hale v. Hale, 307 Ark. 546, 822 S.W.2d 836 (1992), in which the court stated that section 9-12-315 does not allow the equitable distribution of property that is acquired by either gift or inheritance during a marriage. In that case, however, there was no evidence that marital funds were expended to increase the value of the property or that the non-owning spouse made any contributions toward the increase in value of the nonmarital property. Thus, the decision in Hale is not apposite here. We point out that in Brown, supra, the supreme court applied the equitable active-appreciation rule to property inherited by a spouse during the marriage.
[qLarry also argues that the trial court made an unequal division of marital property without reciting its reasons for making the unequal distribution as re quired by section 9-12-S15(a)(l)(B). In the amended decree, the trial court stated that, “to the extent the judgment rendered in this case is an unequal division of property,” it considered the statutory factors and found that Karen prevailed in proving her need for more than a fifty-fifty share of the marital property. We consider this an adequate explanation. Moreover, Larry has not shown that the trial court’s distribution actually resulted in an unequal division of marital property. The burden is on appellant to bring up a record sufficient to demonstrate that the trial court was in error. Young v. Young, 288 Ark. 33, 701 S.W.2d 369 (1986). Thus, Larry’s argument also fails for want of a record. Id.
Karen’s cross-appeal
Karen first argues that the trial court erred in finding that the cattle business was Larry’s separate property. She contends that she helped on the farm and placed her earnings in the joint farm account. She also points out that Larry satisfied the $15,000 loan for the business that he received from his mother during the marriage. On the other hand, Larry testified that Karen did not actively participate in this endeavor and that she did not contribute any money to pay the expenses of running the farm. Larry also testified that he placed appellant’s name on the farm account as a matter of convenience.
The definition of marital property excludes property acquired in exchange for property acquired during the marriage and income derived from property owned prior to the marriage. Ark.Code Ann. § 9-12-315(b)(2) & (7). Here, the trial court resolved the conflicts in the |intestimony in Larry’s favor. The court found that Karen’s contributions of labor were minimal, that Karen’s name was placed on the farm account for the purpose of paying bills, and that she did not make significant contributions of her income into the farm account. The trial court also found that Larry should retain the proceeds as an offset for the court awarding Karen the interest in the sixty acres and for the payment of alimony. The trial court’s decision is not clearly erroneous.
Karen’s next argument is that the trial court erred by not awarding her an interest in the RV6 airplane and the proceeds from the sale of the Cessna. In making this award, the court found that Larry contributed his own labor and the costs associated with the planes. The court also found that, to offset any unfairness in this award, he allowed Karen to retain the items she purchased on eBay. Further, the court stated that it took this award to Larry into account when it set Karen’s interest in the sixty acres. All things considered, we discern no manifest unfairness in the award and hold that the trial court’s decision is not clearly erroneous.
Karen’s last point on appeal is that the trial court erred by not awarding her a share of the $14,500 given by Larry’s mother and placed in a joint account. With regard to these funds, Larry testified that his mother gave him the money to hold so that his mother would qualify for Medicare. In her testimony, Karen stated that she spent the money but that she did not feel that the funds were hers. In light of Karen’s own testimony, we cannot say that the trial court’s decision was clearly erroneous.
Affirmed.
HART and ROBBINS, JJ., agree.
. At the time of separation, the prosecuting attorney charged Larry with third-degree battery, and Karen obtained an order of protection against him. The trial court allowed Karen to remain in the marital home, but due to the order of protection, the court limited the time Larry could spend on the farm to tend the cattle. Larry was subsequently acquitted of the battery charge. | [
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JIM GUNTER, Justice.
|, Appellant Lloyal Willie Bryant appeals his conviction of two counts of rape and two counts of second-degree sexual assault for which he was sentenced to life plus forty years to run concurrently. On appeal, he asserts that the trial court erred (1) in denying his motion to suppress statements he made during interrogation; (2) in admitting into evidence letters he wrote to his wife while incarcerated; (3) in allowing testimony regarding a prior sexual-assault offense; and (4) in denying his motion for directed verdict. Because this is a criminal appeal in which life imprisonment has been imposed, this court has jurisdiction under Ark. Sup. Ct. R. 1 — 2(a)(2). We affirm on all points.
On April 28, 2007, the Boone County Sheriffs Office was called to appellant’s mobile home in Lead Hill, where he lived with his wife and stepchildren, to investigate a domestic disturbance. During that investigation, five-year-old C.H. alleged that appellant had sexually ^abused him. Appellant was arrested, and two days later Detective Troy Walker interviewed him regarding the allegations of sexual abuse. Following that interview, appellant was charged with two counts each of rape and sexual assault in the second degree.
Prior to trial, appellant filed several motions, including: (1) a motion to suppress his statement made to Detective Walker alleging that it was involuntary and coerced in violation of his constitutional rights; (2) a motion in limine to exclude letters appellant wrote to his wife while incarcerated because they were more prejudicial than probative under Arkansas Rule of Evidence 403; (3) a motion in limine pursuant to Rule 609(a) to prevent the State from using a prior sexual-assault conviction to impeach appellant because the prior conviction was more prejudicial than probative; and (4) a motion in limine based on Arkansas Rules of Evidence 403 and 404(b) to exclude testimony regarding appellant’s prior crimes as more prejudicial than probative and because the introduction of the prior conviction was to show appellant’s bad character.
Appellant’s trial began on April 28, 2008. His twenty-one-year-old stepdaughter, IsBrittany Bailey, testified that she was at the home the day the police arrested appellant. She stated that appellant was intoxicated that day and that he was arguing with her sister Belinda. Appellant had accused Belinda of molesting her brother, C.H., and Brittany explained that the argument escalated and that appellant “spit in her face.” Brittany stated that she talked to C.H. alone and that his story was inconsistent with appellant’s version. She stated that C.H. indicated that appellant had been the abuser.
C.H., at the time six years old, testified that he lived with appellant and thought of him as a father. C.H. stated that while he lived with appellant — who C.H. identified as the defendant sitting in the courtroom — appellant touched him inappropriately on his “wiener” and “bottom.” C.H. accurately located these areas on a diagram of body parts. He stated that appellant touched him with his hand, his arm, and his mouth. C.H. testified that appellant “sucked on” his “wiener.” C.H. also said that he was forced to put appellant’s penis in his mouth and that “white stuff came out.”
The State called Detective Walker to testify regarding his interrogation of appellant. Appellant objected to the introduction of the confession on the basis that the detective only mirandized appellant once during the six-hour interview and that when appellant indicated he wished to cease the interview, the detective did not honor that request. The court stated that it had “ruled on it, so I’ll just show it as a continuing objection.”
Detective Walker testified that prior to the interrogation, he read appellant his rights, using the form required by the sheriffs office, and that appellant indicated he could read, |4write, and had received an equivalency diploma after finishing the tenth grade. Detective Walker noted that the interview began just before noon and lasted approximately six hours, with three or four breaks during its course. Upon questioning appellant regarding C.H.’s allegations, appellant’s response was that the child was lying. When the detective asked appellant about specific events, he stated that he did not remember and continued to deny he abused the child. After Detective Walker and appellant viewed the videotaped interview of C.H., appellant said that he had never touched C.H. and that if he had been abused, someone else did it. The interrogation then turned to appellant’s excessive drinking, and Detective Walker asked appellant if he could have inappropriately touched C.H. while he was drunk. Appellant stated that “[i]f it happened, I don’t remember none of it.” Appellant admitted that he was an alcoholic and that if C.H. was telling the truth, “I don’t remember if it did happen.” Appellant also expressed that “[fit’s tearing me up right now. It’s hurts [sic] me to know that I could do something like that with him.” The detective then questioned appellant about his history of being sexually abused by his own father. Appellant admitted that his father had molested him and that he occasionally dreamt about the abuse. At one point, appellant stated that “I’m not denying it didn’t happen, it— more than likely, it has happened but I [inaudible] dreams about my dad.” Thereafter, the following colloquy occurred:
Detective Walker: We don’t have to wait Willie.
Appellant: Troy, I don’t remember it.
Detective Walker: Yes, you do.
Appellant: No, I don’t.
Detective Walker: Yes, you do. Stop, I’m not going to hear it.
Appellant: Okay, then we’re through with [inaudible] this interview then.
| ^Detective Walker: Be quiet.
Appellant: I can’t answer it, I can’t admit something ...
Detective Walker: He needs your support Willie.
Appellant: I know and I’m ...
Detective Walker continued to question appellant, and he continued to deny the allegations. Detective Walker described appellant’s demeanor throughout the interview as “stoic,” showing “no emotion,” and like a “statue.” The detective stated that appellant never seemed offended, even when the detective used profanity to attempt to elicit an emotional response. Detective Walker noticed tears in appellant’s eyes at one point during the discussion of his own abuse by his father.
A deputy with the Boone County Sheriffs Office testified that he served as jailer while appellant was incarcerated prior to trial. The deputy testified that appellant wrote two letters to his wife. Brittany Bailey was recalled to testify regarding letters received at her residence for her mother. She stated that she had seen appellant’s handwriting several times during the three years she lived with him. She indicated that she had no doubt the letters were from appellant. Appellant objected to the introduction of the letters on the basis that they were more prejudicial than probative under Rule 403 and that the State had failed to lay a proper foundation. The court allowed the letters but noted appellant’s continuing objection. Brittany testified that in one of the letters, appellant wrote that “God, I wish I could turn back this, turn back time but I can’t. Everything happens for a reason. This has opened up my eyes to see where I’m going. The one I need to show is [C.H.]. If I did touch him.” He also indicated in the letter that when he got out the family should move to Missouri where “DHS 1 fidon’t follow you.”
Thirteen-year-old C.L. was also called to testify. He stated that appellant’s wife babysat him when he was younger and that during that time, appellant touched him inappropriately. C.L. indicated that during the time of the abuse, he often stayed the night at appellant’s home and that he spent significant time with appellant. C.L. described how appellant “would mess with our penises and our butts. He would play with our penises. He would feel our butts and put his finger in it.” He said that it happened more than once and that appellant “put his penis on us and inside our butts.” C.L. stated that he touched appellant’s penis and “semen came out.” C.L. testified that appellant was normally intoxicated during the abuse. C.L.’s mother testified that her son’s allegations were investigated and that appellant pled guilty and received nine months’ incarceration. Appellant objected to the testimony on the basis of Rules 404(b) and 403 as highly inflammable. He maintained that the rape charge was a “strict liability” crime and that the State had enough proof through C.H.’s testimony alone to convict on the rape and sexual-assault charges so that it did not need the additional testimony. The State responded that whether there was adequate proof was a decision for the jury. The court found that it had previously ruled on the admissibility of the testimony and that it would be allowed.
The State rested, and appellant chose not to testify in his own defense. Appellant moved for directed verdict on the basis that the State failed to offer any evidence to show sexual gratification, which appellant argues was necessary to prove rape and second-degree sexual assault; that there was no physical evidence of abuse; that C.H.’s testimony was not |7credible nor sufficient alone to sustain a conviction; that the State failed to prove two counts of rape and two counts of sexual assault rather than a continuing course of conduct; that appellant was forced to forfeit an opportunity to testify in his own defense else be impeached by his prior offense; and that if sentenced as a habitual rape offender, appellant would receive a life sentence without ever addressing the jury. The court denied the motion. The jury convicted appellant on two counts each of rape and sexual assault in the second degree. Appellant filed a timely notice of appeal from the judgment and commitment order.
I. Sufficiency of the Evidence
Appellant argues that the trial court erred in denying his motion for directed verdict. Specifically, he asserts that the evidence was insufficient to prove rape or sexual assault because the State failed to present any evidence other than the testimony of C.H. to support the allegations. Alternatively, appellant contends that he was incorrectly charged with two counts each of rape and second-degree sexual assault. Although appellant presents his directed-verdict argument as his final point on appeal, we are required to address it first due to double-jeopardy concerns. Campbell v. State, 2009 Ark. 540, 354 S.W.3d 41.
This court treats a motion for a directed verdict as a challenge to the sufficiency of the evidence. Gwathney v. State, 2009 Ark. 544, — S.W.3d -. In reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State, consider only the evidence that supports the verdict, and we affirm if substantial evidence exists to support the verdict. Id. Substantial evidence is that evidence which is of sufficient Lforce and character that it will, with rea sonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Campbell, supra.
A person commits rape if he engages in sexual intercourse or deviate sexual activity with a person less than fourteen years old. Ark.Code Ann. § 5-14-103(a)(3)(A) (Supp.2009). “Deviate sexual activity” means any act of sexual gratification involving the penetration, however slight, of the anus or mouth of a person by the penis of another or by the penetration, however slight, of the anus of a person by any body member or foreign instrument manipulated by another person. Ark.Code Ann. § 5-14-101 (Supp.2009). A person commits sexual assault in the second degree when he is over the age of eighteen and engages in sexual contact with a person less than fourteen years old who is not his spouse. Ark.Code Ann. § 5-14-125 (Supp. 2009).
This court has consistently held that the testimony of a rape victim, standing alone, is sufficient to support a conviction if the testimony satisfies the statutory elements of rape. Rohrbach, v. State, 374 Ark. 271, 287 S.W.3d 590 (2008); see also Jones v. State, 300 Ark. 565, 780 S.W.2d 556 (1989) (holding that testimony of child victim, standing alone, was sufficient to sustain rape conviction where victim clearly identified defendant and testified to the acts). Likewise, the victim’s testimony need not be corroborated to demonstrate sufficient evidence of first-degree sexual abuse. Rains v. State, 329 Ark. 607, 953 S.W.2d 48 (1997). To the extent that there may be inconsistencies in the victim’s testimony, this is a matter of credibility for the jury to resolve. Id. In cases of sexual abuse, it may be assumed that the defendant had Lsexual contact with the victim for the purpose of sexual gratification, and it is not necessary -for the State to directly prove that he was so motivated. Id. It is similarly not necessary for the State to prove specifically when and where each act of rape or sexual contact occurred, as time is not an essential element of the crimes. Id. Furthermore, rape is not defined as a continuing offense; rather, it is a single crime that may be committed by either engaging in sexual intercourse or deviate sexual activity with, as in this case, another person who is less than fourteen years of age. Id. Where the victim testifies to multiple acts of rape of a different nature, separated in a point of time, there is no continuing offense, as a “separate impulse was necessary for the commission of each offense.” Tarry v. State, 289 Ark. 193, 195, 710 S.W.2d 202, 203 (1986); see also Small v. State, 371 Ark. 244, 264 S.W.3d 512 (2007) (holding that although the acts all occurred within the same night, they each involved a separate impulse and were separate offenses).
Here, C.H. clearly identified appellant as the perpetrator and testified that appellant engaged in several different acts of a sexual nature, including appellant “sucking” on C.H.’s “wiener,” appellant placing his penis in C.H.’s mouth, and appellant touching C.H. on his “wiener” and bottom. Pursuant to our case law, C.H.’s testimony alone supported appellant’s conviction for rape and sexual assault. Moreover, C.H.’s testimony illustrated that there were several different actions of sexual assault and rape — acts that can each be separated in time as involving distinct impulses where appellant touched C.H. on his penis and bottom and where appellant sought sexual gratification by performing sexual acts on C.H. and then sought sexual | ^gratification by forcing C.H. to perform sexual acts on appellant. Therefore, we affirm on this point because there was sufficient evidence for the jury to convict appellant of two counts each of rape and second-degree sexual assault.
II. Suppression of Statement
Appellant makes two arguments with regard to the suppression of statements he made during custodial interrogation. First, he argues that the trial court should have excluded those statements because he did not knowingly, voluntarily, and freely waive his rights. Specifically, he maintains that due to the length of the interrogation and verbal abuse by the detective, any statement made by appellant was not voluntary. Second, appellant contends that any incriminating statements he made after he asked to stop the interview but was rebuked by the detective should have been suppressed.
A statement made while in custody is presumptively involuntary, and the burden is on the State to prove by a preponderance of the evidence that a custodial statement was given voluntarily. Bell v. State, 371 Ark. 375, 266 S.W.3d 696 (2007). In Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003), we clarified the appropriate standard of review for cases involving a trial court’s ruling on the vol-untariness of a confession — we make an independent determination based upon the totality of the circumstances. We review the trial court’s findings of fact for clear error, and the ultimate question of whether the confession was voluntary is subject to an independent, or de novo, determination by this court. Clark v. State, 374 Ark. 292, 287 S.W.3d 567 (2008).
| nAppellant’s first sub-point regarding suppression pertains to voluntariness and waiver. In support of his argument, he points to the following facts: he was interviewed while in custody and was not free to leave; he was mirandized only at the beginning of the six-hour interrogation with only one break; he was not well-educated; and the detective yelled at appellant during the interrogation and called him “son of a bitch,” “lying bastard,” and “sack of shit.” Appellant asserts that due to the length of the interrogation and his low level of education, Detective Walker should have re-mirandized appellant to ensure that any statement was voluntary. Appellant also contends that the verbal abuse by the detective, as well as questions designed to elicit an emotional response from appellant, created a coercive environment.
The State responds and maintains that appellant had a GED diploma and demonstrated he could read and write by reading aloud from the written waiver. The State also notes that neither the length of the interview nor the detective’s use of profanity seemed to elicit any response from appellant and that there was no evidence that his will was overborne by those factors.
In order to determine whether a waiver of Miranda rights is voluntary, knowing, and intelligent, this court looks to see if the statement was the product of free and deliberate choice rather than intimidation, coercion, or deception. Flanagan v. State, 368 Ark. 143, 243 S.W.3d 866 (2006). To make this determination, we review the totality of the circumstances surrounding the waiver including the age, education, and intelligence of the accused; the lack 11Ppf advice as to his constitutional rights; the length of the detention; the repeated and prolonged nature of the questioning; the use of mental or physical punishment; and statements made by the interrogating officers and the vulnerability of the defendant. Id. Again, we will reverse a circuit court’s ruling on this issue only if it is clearly against the preponderance of the evidence. Id.
Furthermore, we have stated that there is no constitutional requirement that a sus pect be warned of his- Miranda rights each time he is questioned. Williams v. State, 363 Ark. 395, 214 S.W.3d 829 (2005). There is likewise no mechanical formula for measuring the longest permissible interval between the last warning and the confession. Id. Miranda warnings need only be repeated when the circumstances have changed so seriously that the accused’s answers are no longer voluntary, or the accused is no longer making a knowing and intelligent relinquishment or abandonment of his rights. Id. Important considerations are the length of time that has elapsed between the Miranda warnings and the confession and the number of prior warnings. Id, An additional consideration is whether the accused initiated the second interrogation. Id.
We are satisfied that the circuit court did not err in allowing appellant’s custodial statements into evidence. Detective Walker advised appellant of his constitutional rights in writing and appellant signed the waiver form. The entire interview took approximately six hours in a single day. We have held that a defendant’s constitutional rights were not violated where twenty-two hours elapsed between the Miranda warning and the confession and also 113where three days had elapsed. See Williams, 363 Ark. at 409, 214 S.W.3d at 837; Barnes v. State, 281 Ark. 489, 665 S.W.2d 263 (1984). Moreover, there was no evidence that the length of the interview or the detective’s questioning style overrode appellant’s will and coerced him into incriminating himself. Rather, the evidence suggests otherwise — that appellant stayed calm and collected throughout the interview. Furthermore, the detective’s use of profanity was minimal and not patently offensive. Under the totality of the circumstances, we cannot say that the circuit court clearly erred in refusing to suppress the statement on this basis.
Appellant’s second sub-point with regard to suppression is that any comments he made after he asked to cease the interview should have been suppressed because they were taken in violation of his constitutional rights. A person subject to custodial interrogation must first be informed of his right to remain silent and right to counsel under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Statements improperly taken after the invocation of the right to remain silent or the right to counsel must be excluded from the State’s case in chief to ensure compliance with the dictates of Miranda. See Michigan v. Harvey, 494 U.S. 344, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990). “Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” Miranda, 384 U.S. at 473-74, 86 S.Ct. 1602; see also Ark.R.Crim. P. 4.5 (2009). An indication that a defendant wishes to remain silent is an invocation of his Miranda rights. Robinson v. State, 373 Ark. 305, 283 S.W.3d 558 (2008). Once the right to remain silent is invoked, it must be scrupulously honored. Id. The meaning of “scrupulously honored” was |14discussed in James v. Arizona, 469 U.S. 990, 992-93,105 S.Ct. 398, 83 L.Ed.2d 332 (1984):
To ensure that officials scrupulously honor this right, we have established in Edwards v. Arizona, [451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) ], and Oregon v. Bradshaw, [462 U.S. 1039,103 S.Ct. 2830, 77 L.Ed.2d 405 (1983) ], the stringent rule that an accused who has invoked his Fifth Amendment right to assistance of counsel cannot be subject to official custodial interrogation unless and until the accused (1) “initiates” further discussions relating to the investigation, and (2) makes a knowing and intelligent waiver of the right to counsel under the [waiver] standard of Johnson v. Zerbst, 304 U.S. 458 [58 S.Ct. 1019, 82 L.Ed. 1461] (1938), and its progeny.
(Some citations omitted.) Furthermore, “[i]f the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” Miranda, 384 U.S. at 475, 86 S.Ct. 1602. This high bar on the State’s burden of proving waiver of the right to remain silent is best understood as a result of the view that courts are to “indulge every reasonable presumption against waiver of fundamental constitutional rights.” Michigan v. Jackson, 475 U.S. 625, 633, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)).
When invoking a Miranda right, the accused must be unambiguous and unequivocal. Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). For example, when invoking the right to counsel, the Court has said:
[H]e must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. If the statement fails to meet the requisite level of clarity, [the law] does not require that the officers stop questioning the suspect.
Davis, 512 U.S. at 459, 114 S.Ct. 2350. This court has extended the Davis holding by reviewing the question of specificity when invoking the right to silence. See Standridge v. State, 329 Ark. 473, 479, 951 S.W.2d 299, 301 (1997); Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995). For example, in Standridge, we held that a suspect’s statement “I ain’t ready to talk” was not unequivocal. Likewise, we held in Bowen that the statement that the accused wanted to “think about” talking to police officers was not sufficiently definite. Moreover, in Bowen we held that the right to remain silent must be made unequivocally, and answering questions following a statement that attempts to invoke the right to remain silent may waive that right by implication.
Turning to the present appeal, appellant argues that the circuit court should have suppressed his statement because he invoked his right to remain silent when he indicated, “Okay, then we’re through with this interview then.” Viewing that statement in context, it was made after appellant had repeatedly denied sexually assaulting C.H. and the detective had repeatedly refused to believe appellant. The alleged invocation followed the detective’s statement, “Stop, I’m not going to hear it.” In essence, appellant and the detective were arguing and appellant was informing Detective Walker that if he did not believe him, then there was nothing left to discuss. However, appellant kept talking, denying involvement. We hold that appellant’s statement was not an unequivocal request invoking his right to remain silent and that pursuant to Bowen, his willingness to continue the conversation implicitly waived any attempt to invoke that right.
III. Admission of Letters
Appellant contends that the trial court erred in allowing into evidence letters that 11RappeIlant wrote and sent to his wife during his incarceration because the prejudicial effect of those letters greatly outweighed any probative value under Rule 403 of the Arkansas Rules of Evidence. Particularly, appellant maintains that the letters indicated both a consciousness of guilt and of innocence, thus confus ing the jury. Appellant argues that the letters shed no light on whether appellant actually committed the sexual-abuse crimes against C.H. and only function to create an unfair prejudice in the jurors’ minds that appellant’s wife, who committed suicide shortly after receiving the letters, took her own life due to appellant’s actions.
Rule 403 of the Arkansas Rules of Evidence provides that:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Ark. R. Evid. 403 (2009). We have repeatedly held that the balancing mandated by Rule 403 is a matter left to a trial court’s sound discretion, and thus, we will not reverse the court’s ruling absent a showing of manifest abuse. Phillips v. State, 344 Ark. 453, 40 S.W.3d 778 (2001). Furthermore, when evidence of guilt is overwhelming, slight errors in the introduction of evidence do not constitute reversible error. Id. Evidence offered by the State in a criminal trial is likely to be prejudicial to the defendant to some degree, otherwise it would not be offered. See McCullough v. State, 2009 Ark. 134, 298 S.W.3d 452. The credibility of witnesses is an issue for the jury and not the court. Bell v. State, 371 Ark. 375, 266 S.W.3d 696 (2007). The trier of fact is free to believe all or part of any witness’s 117testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id.
We hold that the trial court did not manifestly abuse its discretion by allowing the State to introduce appellant’s letters to his wife. The State argues that the letters show appellant’s guilty state of mind and created a reasonable inference that appellant was attempting to convince his wife to help him beat the charges so they could leave the state and DHS’s reach. In fact, any suggestion of a guilty conscience in the letter is slight. Appellant never confesses to the crime in the letter, and as the weigher of credibility, the jury was charged with interpreting appellant’s state of mind and intentions in writing the letter. Additionally, there is no evidence in the record that the jury had any knowledge of appellant’s wife’s suicide. Furthermore, C.H.’s testimony provided sufficient evidence — without the letter — to support a finding of guilt. Under these circumstances, we can find no basis for reversal.
IV. Testimony Regarding Appellant’s Prior Bad Acts
Appellant asserts that the trial court erred in allowing the State to introduce, via the testimony of a prior victim and his mother, appellant’s prior second-degree sexual assault conviction. Appellant maintains that the State’s only purpose in introducing this evidence was to prove that appellant acted in conformity with his prior acts and that the evidence does not fit the pedophile exception because the prior victim did not have an intimate relationship with appellant. Basically, appellant claims that because his wife — not himself — babysat C.L., appellant was not in the requisite position of authority over C.L. Appellant also argues on | T«appeal that the prejudicial effect of this testimony outweighs any probative nature.
The admission or rejection of evidence under Rule 404(b) is committed to the sound discretion of the circuit court, which this court will not disturb on appeal absent a showing of manifest abuse. Kelley v. State, 2009 Ark. 389, 327 S.W.3d 373. Rule 404(b) provides as follows:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Ark. R. Evid. 404(b) (2009). Evidence offered under Rule 404(b) must be independently relevant to make the existence of any fact of consequence more or less probable than it would be without the evidence. Id. In other words, the prior bad act must be independently relevant to the main issue, in that it tends to prove some material point rather than merely proving that the defendant is a criminal. Id.
This court has long recognized a “pedophile exception” to Rule 404(b). Id. We have approved allowing evidence of the defendant’s similar acts with the same or other children when it is helpful in showing a proclivity for a specific act with a person or class of persons with whom the defendant has an intimate relationship. Id. The rationale for this exception is that such evidence helps to prove the depraved sexual instinct of the accused. Id. For the pedophile exception to apply, we require that there be a sufficient degree of similarity between the evidence to be introduced and the sexual conduct of the defendant. Id. We also require that there be an “intimate relationship” between the perpetrator and the victim of the | l9prior act. Id.
In his pre-trial motion in limine, appellant argued that the State’s only rationale for introducing his prior sexual-assault conviction was to prejudice the jury and that the introduction of the testimony was meant only to reflect on appellant’s bad character. When the State introduced the testimony of C.L. and his mother at trial, appellant objected on the grounds that the evidence was “highly inflammable” and unnecessary because the State had already proven its case through the testimony of C.H. Appellant never argued to the trial court that the State had failed to show he was in the requisite position of authority over the prior victim for the pedophile exception to apply. Arguments made for the first time on appeal will not be considered. Singleton v. State, 2009 Ark. 594, 357 S.W.3d 891. Therefore, any argument by appellant that C.L.’s testimony should have been excluded because it did not fall under the pedophile exception is not preserved.
Regardless, the trial court did not err in allowing C.L. and his mother to testify because the testimony was admissible under the pedophile exception. Both witnesses testified that C.L. spent a lot of time with appellant while his wife served as babysitter and that C.L. often slept over at appellant’s home. C.L.’s testimony regarding the sexual abuse was similar in nature to the testimony of C.H., both victims were young boys at the time of the abuse, both testified that appellant was often intoxicated at the time of the abuse, and both were subjected to sexual abuse while staying in appellant’s home. Therefore, the circuit court did not err in allowing C.L. and his mother to testify under the pedophile exception.
lijfiV. Rule 1-3(i) Analysis
Pursuant to Arkansas Supreme Court Rule 4 — 3(i), we have reviewed the abstract, addendum, and record for all adverse rulings on objections, motions, and requests made by either party, and no reversible error has been found.
Affirmed.
BOWEN, J., not participating in final opinion.
. Although the record demonstrates that several pre-trial hearings were held, including a hearing on the suppression issue on January 18, 2008, the record is devoid of any reference, either orally or in writing, that the court ever made a ruling prior to trial on any of the appellant’s pre-trial motions. Regardless, appellant objected at trial each time the State proposed to introduce testimony or evidence that he now claims on appeal was admitted in error. This court has held that where a judge does not make a final determinative ruling on a party's pre-trial motion, the party must object at trial to the evidence in question in order to raise the issue on appeal. See Vaughn v. State, 338 Ark. 220, 992 S.W.2d 785 (1999); Campbell v. State, 300 Ark. 606, 780 S.W.2d 567 (1989). Because appellant objected at trial to the introduction of appellant’s statement, the letters, and the evidence of the appellant’s prior bad acts, and it is clear from the record that the court denied those objections at the trial, this court can rule on the merits of those issues. | [
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M. MICHAEL KINARD, Judge.
| TAppellee Winifred Foster filed this action to declare the validity of her will and Restatement to the Winifred L. Foster Living Trust dated June 26, 2007.- The circuit court, sitting in the probate division, upheld the validity of the documents, and her granddaughter, appellant Deirdre Foster, appealed. We affirm.
Facts
Winifred Foster, who was born in 1916, has four grandchildren: Deirdre Foster, Peyton Foster, Louisa Foster, and Nayla Foster. Winifred’s now-deceased son, Bryant, married twice. Louisa and Nayla are the daughters of Judith Foster, Bryant’s first wife; Deirdre and Peyton were born during his second marriage. Judith and all of the grandchildren live out of state, and Winifred received care at home from an agency called Home Instead. Winifred owns a substantial amount of real and personal property. In 2006, Nayla, Deirdre, and Judith became convinced that Peyton had taken financial advantage of Winifred. According to the | ¡.evidence introduced at the hearing, Pey-ton managed to obtain around $1,000,000 from Winifred through coercion.
On November 6, 2006, attorney William Haught drafted a will and trust for Winifred. In those documents, Deirdre was named as a beneficiary. After the creation of the trust, Nayla, Judith, and Deirdre worked together to complete the paperwork necessary for the transfer of Winifred’s property to the trust. Winifred also gave her power of attorney to Nayla. In December 2006, Nayla filed a petition on behalf of Winifred for an order of protection from Peyton. On the petition, she checked the blank adjacent to the phrase “an adjudicated incompetent person” and wrote: “We are filing for guardianship of my grandmother because she has severe memory loss/dementia.” Nayla took Winifred to the geriatric specialists at UAMS several times over the next year.
Around the time Winifred’s property was transferred to the trust, an adult protective-services proceeding was initiated against Nayla. After the Arkansas De partment of Human Services (“DHS”) held a hearing concerning allegations of financial abuse in April 2007, Nayla was exonerated of the charges. Although Deirdre and Nayla had originally cooperated in attempting to protect their grandmother’s assets from what they claimed was overreaching by Peyton, they had a falling-out. Deirdre did not attend Nayla’s DHS hearing, allegedly because she could not leave work. Nayla, however, took offense at Deirdre’s apparent lack of support, as did Winifred.
laOn May 25, 2007, Winifred wrote a codicil to her will significantly reducing Deirdre’s portion of her estate and providing that Nayla would receive almost all of her estate. After meeting with Winifred in a private appointment arranged by attorney Randy Looney, another attorney, Dennis Wilson, used Winifred’s handwritten codicil to prepare a new will and restatement of trust. Winifred signed the new documents on June 26, 2007. These documents eliminated all beneficiaries except Nayla. Winifred’s longtime friend and neighbor, Frank Aiello, along with Judith Foster witnessed the execution, of which Nayla made a video recording. Winifred also signed another document giving Nayla her power of attorney. Winifred gave the following explanation for the changes:
My primary interest in restating my former trust agreement is to insure that my granddaughter Nayla Foster be made the sole beneficiary of my estate. I intentionally have not named Louisa Foster, Deirdre Foster, and Peyton Foster as beneficiaries in this agreement due to the fact they have either already taken from me their share of my estate or have never been a part of my life in the first place.
Nayla Foster has been and continues to be a person I deeply love and trust, and it is my desire that she inherit all of my remaining estate upon my death.
At Mr. Wilson’s suggestion, Nayla took Winifred for an evaluation at St. Vincent Infirmary’s Senior Health Clinic on June 27, 2007. Dr. Jennifer Co noted that Winifred had been diagnosed with Alzheimer’s disease in January 2007. She had problems with short-term memory loss and relied on a home-care service to provide meals and administer medication. However, she was able to handle activities of daily living.
In August 2007, Louisa convinced Winifred to sign a document prepared by attorney Rick Sellars revoking Nayla’s power of attorney. When Mr. Wilson learned of the attempted | revocation, he and Mr. Sellars confronted Winifred about the document. Winifred’s confusion at that time led Mr. Wilson to doubt her mental competence, and he filed an emergency petition for appointment of a guardianship on August 20, 2007. The next month, Winifred filed a petition to declare the validity of her June 2007 restatement of trust. She later amended her petition to request that the court also declare her June 26, 2007 will valid. Deirdre and Louisa responded that Winifred lacked testamentary capacity to sign the June 2007 documents.
At trial, the videotape of Winifred’s execution of the documents was admitted into evidence. The video showed Mr. Wilson explaining the will to Winifred, who expressed her love for Nayla and desire for Nayla to have all of her property. Winifred signed the documents and then handed her pen to Mr. Aiello, who then signed as a witness. Mr. Aiello was sitting next to Winifred during the explanation and signing. He testified at trial that he remembered going to Winifred’s house to sign some papers, but he didn’t know what the papers were and didn’t see Winifred sign them. Judith Foster testified that she witnessed Winifred sign the documents in June 2007 and that she signed the will as a witness.
Mr. Wilson testified that Winifred was his only source of information when he prepared the will and that he saw Winifred, Mr. Aiello, and Judith sign the will, which Mr. Wilson notarized. He said that Mr. Aiello saw Winifred sign the will. He testified at length about Winifred’s testamentary capacity and the circumstances surrounding the execution of the will, indicating that he found her to be competent on the day in question. Mr. Wilson also testified that Winifred paid him directly for his services.
Is At the conclusion of the trial, Deirdre’s motion to conform her pleadings to the proof was granted. The circuit court entered a declaratory judgment in which it found that Winifred possessed testamentary capacity at the time that she signed the May 25, 2007 and the June 26, 2007 documents. Deirdre filed a motion for reconsideration and new trial, which was deemed denied, and then pursued this appeal.
Standard of Review
We review probate matters de novo but will not reverse the circuit court’s findings of fact unless they are clearly erroneous. Fischer v. Kinzalow, 88 Ark.App. 307, 198 S.W.3d 555 (2004). We defer to the superior position of the lower court sitting in a probate matter to weigh the credibility of the witnesses. Id.
Discussion
For her appeal, Deirdre argues that the circuit court erred in entering the declaratory judgment for Winifred and in denying her motion for reconsideration for several reasons. First, she argues that Winifred failed to prove that she properly executed the will. Second, she argues that Nayla procured the will by exerting undue influence. Third, Deirdre argues that collateral estoppel prevented Winifred and Nayla from claiming that Winifred was .competent when she executed her will. Fourth, she claims that Winifred and Nayla failed to introduce certain medical records. And finally, she asserts that the circuit court ignored evidence of incompetence and lack of testamentary capacity.
|fiI. Execution
Deirdre first argues that Winifred failed to prove that she executed her will in accordance with the requirements of Arkansas Code Annotated section 28-25-103 (Repl.2004), which, being in derogation of the common law, must be strictly construed. Specifically, she asserts that Winifred did not declare the will to be hers or ask the witnesses to witness her signature. She further contends that the circuit court was mistaken as to who bore the burden of proof.
Winifred responds that Deirdre did not raise this argument at trial or obtain a ruling on it. We agree that Deirdre did not develop this argument until she filed her motion for reconsideration. On appeal, Deirdre contends that simply amending her pleadings to conform to the proof at the conclusion of her case was sufficient to preserve this issue for appeal. We disagree. It was not apparent from the record that execution was contested at trial, and the circuit court did not rule on it. We will not consider arguments that were not raised before and ruled upon by the circuit court. Taylor v. Taylor, 369 Ark. 31, 250 S.W.3d 232 (2007).
Even if this argument had been raised below, the argument would fail because the evidence demonstrated that the will was properly executed. The execution of a will, other than a holographic will, must be by the signature of the testatrix and of at least two witnesses. Ark.Code Ann. § 28-25-103(a) (Repl.2004). The testatrix must declare to the attesting witnesses that the instrument is her will and sign the will, and the attesting witnesses must sign at the request and in the presence of the testatrix. Id. § 28-25-103(b), (c).
|7The requirement that the testatrix declare the instrument to be a will is called publication. Faith v. Singleton, 286 Ark. 403, 692 S.W.2d 239 (1985). No particular form of words is necessary in order to publish a will. Id. The fact of publication is to be inferred from all of the circumstances attending the execution of the will. Id. Although the preferred practice is for a testator or testatrix to recite the words “this is my will,” it is not required. Id. Nor is strict construction of the statute required; where there is no indication of fraud, deception, undue influence, or imposition, the appellate court avoids strict technical construction of statutory requirements in order to give effect to the testatrix’s wishes. Id. The same is true regarding the statutory requirement that the attesting witnesses must sign at the request and in the presence of the testatrix. Hanel v. Springle, 237 Ark. 356, 372 S.W.2d 822 (1963). Depending upon the circumstances, substantial compliance can be sufficient. Id.; Fischer, supra. If a will appears to be duly executed and the attestation is established by the witnesses to its execution, although they do not remember the transaction, it will be presumed, in the absence of evidence to the contrary, that the will was executed in compliance with the requirements of the law. Upton v. Upton, 26 Ark.App. 78, 759 S.W.2d 811 (1988); Green v. Holland, 9 Ark.App. 233, 657 S.W.2d 572 (1983).
Here, all of the elements of proper execution have been met. Winifred’s will was signed by Winifred, Mr. Aiello, and Judith Foster. As the video of the execution shows, Mr. Aiello signed in Winifred’s presence, after hearing Mr. Wilson explain the will and Winifred express her desire for the will. According to her testimony, Judith Foster was also present 18when this occurred. Although Winifred did not state specifically, “this is my will,” publication can be inferred from her previous explanation — in the presence of the witnesses— that she wanted Nayla to have all of her property.
Without citation to authority, Deirdre also asserts that the video of the execution by Winifred lacked foundation. She did not, however, challenge the video’s foundation at trial. A timely, specific objection at trial is essential in order to afford the trial court the opportunity to rule. Bohannan v. Underwood, 300 Ark. 110, 776 S.W.2d 827 (1989). Error may not be predicated upon a ruling admitting evidence unless there is such a timely, specific objection. Id.
II. Procurement
Deirdre next argues that Nay-la procured the will and trust and had the burden of proving that there was no undue influence. She stresses that Nayla had been Winifred’s financial advisor; that the date on Winifred’s handwritten codicil was in Nayla’s handwriting; that Nayla accompanied Winifred to the meetings to draft and sign the documents; that Nayla’s mother, Judith, was present at the execution; and that Winifred’s feeble condition made her susceptible to undue influence. Deirdre, however, did not raise the issue of procurement at trial or obtain a ruling on it. She first made this argument in her motion for reconsideration. This issue, therefore, is not preserved for appeal. See Taylor, supra.
Even so, the evidence did not establish that Nayla procured the will. In a typical will contest, the party contesting the validity of the will has the burden of proving by a ^preponderance of the evidence that the testatrix lacked mental capacity at the time the will was executed or that the testator acted under undue influence. Bell v. Hutchins, 100 Ark.App. 308, 268 S.W.3d 358 (2007). However, where a beneficiary under the will actually drafts or procures the will, Arkansas law applies a higher burden of proof. Id. The proponent of a will who is a beneficiary and who procured the will has the burden of proving beyond a reasonable doubt that the will was not the result of undue influence and that the testatrix had the mental capacity to make the will. Id.
The record reflects that it was attorney Randy Looney who contacted Mr. Wilson about preparing the June 2007 documents and made the appointment for Winifred to meet with attorney Wilson. Winifred was Mr. Wilson’s only source of information about her wishes, and Mr. Wilson talked with her privately and at length about her new will. Also, Winifred paid Mr. Wilson directly. Furthermore, Winifred clearly stated in the video that she intended Nayla to be her sole beneficiary. Winifred’s distribution was understandable, considering her closeness with Nayla as opposed to her other grandchildren. Therefore, Deirdre did not prove that Winifred’s will was executed with undue influence.
III. Collateral Estoppel
For her third point, Deirdre argues that Winifred and Nayla were collaterally estopped from asserting that Winifred was competent to sign the June 2007 documents because Nayla had filed a pleading asserting that Winifred was incompetent in December 2006 and because Mr. Wilson filed a proceeding for guardianship of Winifred in August 2007. Winifred Incorrectly points out that Deirdre failed to raise this issue below or obtain a ruling on it. As we previously stated, we will not consider arguments raised for the first time on appeal. Taylor, supra.
Regardless of whether Deirdre preserved this issue, there has been no judicial finding that Winifred was incompetent. Collateral estoppel, also known as issue preclusion, bars relitigation of issues of law or fact previously litigated, provided that the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question and that the issue was essential to the judgment. Morgan v. Turner, 2010 Ark. 245, 368 S.W.3d 888. To apply collateral estoppel, the following elements must be present: (1) the issue sought to be precluded must be the same as that involved in the prior litigation; (2) the issue must have been actually litigated; (3) the issue must have been determined by a valid and final judgment; and (4) the determination must have been essential to the judgment. Id. Although collateral es-toppel may be asserted by a stranger to the first judgment, the party against whom it is asserted must have been a party to the earlier action and must have had a full and fair opportunity to litigate the issue in the first proceeding. Id.
In this ease, there had been no prior valid and final judgment concerning Winifred’s testamentary capacity on June 26, 2007, nor had Winifred been adjudicated incompetent. Although there may have been plans to seek an adjudication of incompetence for Winifred, at no time was the issue actually litigated. Therefore, collateral estoppel could not be applied in this case. Deirdre’s third argument is completely without merit.
I,,1V. Failure to Introduce Records
Deirdre argues in her fourth point that Winifred and Nayla failed to introduce into evidence records of Winifred’s competency evaluation at St. Vincent Infirmary in June 2007. Therefore, she argues, there arose a legal presumption that the evidence would be unfavorable to Winifred’s case. Winifred correctly responds that Deirdre failed to raise this argument below. Again, we will not entertain arguments on appeal that were not raised before the trial court. Taylor, supra. Also, Deirdre does not assert any authority to support her contention that a circuit court’s failure to recognize such a presumption constitutes reversible error. We will not consider an argument that is not supported by citation to authority or convincing argument. Weatherford v. State, 352 Ark. 324, 334, 101 S.W.3d 227, 235 (2003). Therefore, this argument is also without merit.
V. Testamentary Capacity
Deirdre concludes her brief by arguing that the circuit court arbitrarily ignored medical evidence showing that Winifred lacked testamentary capacity. Generally, testamentary capacity means that the testatrix must be able to retain in her mind, without prompting, the extent and condition of her property, to comprehend to whom she is giving it, the relation of those entitled to her bounty, and the deserts of those whom she excludes from her will. Fischer v. Kinzalow, 88 Ark. App. 307, 198 S.W.3d 555 (2004). Complete sanity in a medical sense at all times is not essential to testamentary capacity, provided that capacity exists at the time the will is executed and that it is executed during a lucid interval. Id. Evidence of the testatrix’s 11gmental condition, both before and after execution of the will at issue, is relevant to show her mental condition at the time she executed the will. Id. The test is whether, at the time the will was executed, the testatrix had a fair comprehension of the nature and extent of her property and to whom she was giving it. Id.
In this case, the circuit court had sufficient evidence to conclude that Winifred had the requisite testamentary capacity on the date in question. The circuit court had before it Mr. Wilson’s testimony, in which he described Winifred as “coherent, consistent and very mobile” when she signed the documents in June 2007. It also had the benefit of the video recording of the execution, which showed Mr. Wilson explaining the will to Winifred and Winifred explaining her desires for distribution of her property. Furthermore, the circuit court had the benefit of the testimony of Frank Aiello and Judith Foster, who witnessed Winifred execute the documents. Although there was also evidence presented that Winifred suffered from some degree of dementia, it was within the circuit court’s discretion to weigh the evidence and credibility of witnesses. The record contains no indication that the circuit court refused to consider such evidence, nor was there any evidence presented that Winifred suffered from a bout of dementia on the day the documents were executed. Therefore, we find no error in the circuit court’s ruling that Winifred had testamentary capacity.
Affirmed.
PITTMAN and GLOVER, JJ„ agree. | [
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ROBERT L. BROWN, Justice.
| Appellants Carroll W. Smith and Lorene R. Smith appeal from a White County Circuit Court order finding that Appellee Arkansas Midstream Gas Services Corporation (Midstream) had the authority to exercise the power of eminent domain over the Smiths’ land in order to construct and maintain a natural gas pipeline. The Smiths present several issues on appeal. We affirm the order of the circuit court.
Midstream is an Arkansas pipeline company presently engaged in a project to construct a pipeline for natural gas transmission across certain lands in White County. It is a wholly-owned subsidiary of Chesapeake Energy Corporation. The Smiths are the owners of real property located in Section Seven (7), Township Eight (8) North, Range Eight (8) West, White County.
|2In 2007, Midstream attempted to negotiate a right-of-way agreement with the Smiths for the purpose of constructing and maintaining a natural gas pipeline across the Smiths’ land. After the negotiation proved unsuccessful, Midstream petitioned the White County Circuit Court on January 4, 2008, to assert the power of eminent domain over a sixty-foot right of way across the Smiths’ land under the authority of the Public Utilities Code (Arkansas Code Annotated sections 23-15-101) and the Eminent Domain Code (Arkansas Code Annotated 18-15-1303). On January 15, 2008, the Smiths moved to dismiss Midstream’s eminent-domain action and alleged that Midstream did not have the authority to exercise the right of eminent domain because: (1) Midstream was seeking to exercise that right to acquire property for private, rather than public, use in violation of the Arkansas Constitution; (2) section 23-15-101 was unconstitutionally vague; (3) section 23-15-101 was incompatible with the Arkansas Constitution; and (4) section 18-15-1303 did not apply to Midstream’s circumstances.
On February 25, 2008, Midstream filed an amended petition seeking the same relief as the original petition. The Smiths renewed their motion to dismiss, and following a | ^hearing, the circuit judge issued a letter order finding that Midstream had the constitutional and statutory right to exercise the power of eminent domain be cause the taking at issue was for a public use. An order denying the Smiths’ motion to dismiss was entered on November 7, 2008.
On July 1, 2009, the circuit judge entered a final order of possession and reiterated his finding that sections 23-15-101 and 18-15-1303 were not unconstitutional. The order granted Midstream the immediate right of entry onto, and the possession of, the following portions of the Smiths’ real property and approved this use:
Permanent pipeline right-of-way across: Part of the Northwest Quarter (NW/4) Section Seven (07), Township Eight (08) North, Range Eight (08) West, more particularly described as follows, to wit: Thirty Feet (30') on both sides of a centerline described as follows, to wit: Commencing at a found stone at the Northwest Corner of said Section Seven (7); Thence S 39°58'09" E, 1753.6 feet to the Point of Beginning; Thence N 24°01'33" W, 311.0 feet; Thence N 09°58'13" E, 863.0 feet; Thence N 34°58'15" E, 223.0 feet; to a point on the North line of said Section Seven (7), said point being the Point of Termination. In addition, Plaintiff, its permitees, agents and contractors, are entitled to have the immediate right of entry onto and possession of a temporary easement fifteen feet in width on the West side of the previously described permanent right-of-way.
l/The circuit judge also granted the Smiths’ motion for supersedeas and stayed the order of possession pending appeal on condition that the Smiths post a superse-deas bond of $1000 to protect Midstream from “any damages sustained by the Plaintiff for the delay of the pipeline.” In addition, Midstream was ordered to tender $4,250.00 into the registry of the court as a just-compensation deposit. The Smiths appealed to this court, but we were forced to remand the case to the circuit court for compliance with Arkansas Rule of Civil Procedure 54(b)(1). See Smith v. Arkansas Midstream Gas Servs. Corp., 2010 Ark. 32, 2010 WL 199650. An amended order in full compliance with Rule 54(b) was entered on February 12, 2010. The Smiths now assert that the circuit judge erred by denying their motion to dismiss because Midstream “cannot claim the power of eminent domain under a constitutional delegation of authority through [Arkansas Code Annotated] § 23-15-101.” The Smiths make several arguments in support of this assertion, which we will consider seriatim.
a. Unconstitutional as Applied
We first address the issue that Arkansas Code Annotated section 23-15-101 is unconstitutional as applied to the facts of this case. Section 23-15-101 provides in pertinent part:
All pipeline companies operating in this state are given the right of eminent domain and are declared to be common carriers, except pipelines operated for conveying natural gas for public utility service.
| sArticle 2, section 22, of the Arkansas Constitution reads: “[t]he right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation therefor.” The Arkansas Constitution further provides that the power of eminent domain is an attribute of, and inherent in, a sovereign state. Ark. Const, art. 2, sec. 23; Pfeifer v. City of Little Rock, 346 Ark. 449, 57 S.W.3d 714 (2001).
It is well established that in light of Article 2, section 22 of the Arkansas Constitution, the right of eminent domain cannot be exercised for the purpose of acquiring property for private use and the General Assembly cannot exercise the power of eminent domain nor delegate its exercise except for public uses. See, e.g., Arkansas State Highway Comm’n v. Alcott, 260 Ark. 225, 539 S.W.2d 432 (1976); Ozark Coal Co. v. Pennsylvania Anthracite Co., 97 Ark. 485, 134 S.W. 634 (1911); Roberts v. Williams, 15 Ark. 43 (1854). Without the consent of the owner, private property cannot be taken for private use, even under the authority of the legislature. City of Little Rock v. Raines, 241 Ark. 1071, 411 S.W.2d 486 (1967); Mountain Park Terminal R.R. Co. v. Field, 76 Ark. 239, 88 S.W. 897 (1905); Williams, 15 Ark. at 46.
Whether private property is being taken for a public or private use is a judicial question which the owner has a right to have determined by the courts. Pfeifer, 346 Ark. at 460, 57 S.W.3d at 721; Raines, 241 Ark. at 1083, 411 S.W.2d at 493; Hogue v. Housing Authority of North Little Rock, 201 Ark. 263, 144 S.W.2d 49 (1940). The landowner, | ^however, bears a heavy burden in proving that the taking was not for a public use. City of El Dorado v. Kidwed, 236 Ark. 905, 370 S.W.2d 602 (1963); Woollard v. State Highway Comm’n, 220 Ark. 731, 249 S.W.2d 564 (1952).
Eminent-domain statutes are strictly construed in favor of the landowner. Pfeifer, 346 Ark. at 459, 57 S.W.3d at 720; Loyd v. Southwest Ark. Util. Corp., 264 Ark. 818, 580 S.W.2d 935 (1979). All statutes, nevertheless, are presumed to be constitutional, and this court resolves all doubts in favor of constitutionality. Arkansas Tobacco Control Bd. v. Sitton, 357 Ark. 357, 166 S.W.3d 550 (2004). The party challenging a statute’s constitutionality has the burden of proving that it is unconstitutional. Id.
The Smiths contend that Midstream’s proposed use of their property “is an absolute private one” in that Midstream’s pipeline “is for the exclusive use of a single individual, or a collection of individuals less than the public.” Citing City of Little Rock v. Raines, the Smiths assert that Midstream’s use is not, in fact, a public use because “the public at large does not have an interest which would allow them to ship materials through [Midstream’s] underground pipeline.” Accordingly, the Smiths conclude that section 23-15-101 is unconstitutional as applied to the facts in this case because it granted the power of eminent domain to Midstream for a private use.
We disagree. This court recently rejected an as-applied challenge to section 23-15-101 in a case involving very similar facts. See Linder v. Arkansas Midstream Gas Servs. Corp., 2010 Ark. 117, 362 S.W.3d 889. In Linder, landowners in Cleburne County also challenged 17Midstream’s right to assert the power of eminent domain for a permanent pipeline easement over their land pursuant to section 23-15-101. They argued, similarly, that section 23-15-101 was unconstitutional in that it granted Midstream, a private, for-profit corporation, the right of eminent domain to acquire private property for a private use in violation of Article 2, section 22 of the Arkansas Constitution. The landowners further asserted that Midstream’s taking was “clearly a private one” in that Midstream was undertaking “by special agreement in particular instances to transport gas for Chesapeake, a few royalty owners and other potential work ing interest owners.” Linder, 2010 Ark. 117, at 7, 362 S.W.3d at 893. The landowners maintained that, under City of Little Rock v. Raines, this was not a public use in fact because it was “for the exclusive use of a collection of individuals less than public.” Id.
After reviewing over one hundred years of relevant case law, this court said:
We conclude, in light of this case law, that section 23-15-101 is not unconstitutional as applied to the facts in the instant case. Section 23-15-101 delegates the power of eminent domain to all pipeline companies operating in this state as common carriers. As common carriers, the pipeline companies are required by law “to carry for all alike, and not at [their] option.” See Alpha Zeta Chapter of Pi Kappa Alpha Fraternity v. Sullivan, 293 Ark. 576, 740 S.W.2d 127 (1987) (quoting Arkadelphia Milling Co. v. Smoker Merck. Co., 100 Ark. 37, 139 S.W. 680 (1911)). Thus, section 23-15-101 affords the public the right to enjoy the use of a taking pursuant to this section, not by permission, but of right. In other words, “the law gives all the right to use it on equal terms.” Ozark Coal, supra.
Furthermore, it makes no difference that only “a collection of a few individuals” may have occasion to use the pipeline after its completion. Again, the character of a taking, whether public or private, is determined by the extent of the right to use it, and not by the extent to which that right is exercised. Ozark Coal, supra. “If all the people have the right to use it, it is a public way, although the number who have occasion to exercise the right is very small.” Ozark Coal, 97 Ark. at 495, 134 S.W. at 634 ls(quoting Phillips v. Watson, [63 Iowa 28] 18 N.W. 659 (Iowa 1884). This court has clearly recognized that in determining whether the taking of property is necessary for public use, not only the present demands of the public, but those which may be fairly anticipated in the future, may be considered. Pfeifer, 346 Ark. at 460, 57 S.W.3d at 72 [721]; Woolard [Woollard] v. Ark. State Highway Comm’n, 220 Ark. 731, 249 S.W.2d 564 (1952) (citing Rindge Co. v. County of Los Angeles, 262 U.S. 700 [43 S.Ct. 689, 67 L.Ed. 1186] (1923)).
The Linders’ reliance on dicta from City of Little Rock v. Raines is misplaced. That case does not stand for the proposition that the public as a whole must in fact use the taking or in fact have occasion to use the taking. On the contrary, in Raines, the court focused on the fact that the industrial park would be limited to private industries, and for that reason eminent domain, was not appropriate. The “public-use-in-fact” argument, espoused by the Linders, was rejected by this Court in Dowling v. Erickson, 278 Ark. 142, 644 S.W.2d 264 (1983), where we said:
Appellant argues that the right of eminent domain cannot be exercised unless it is in fact for use by the public, citing City of Little Rock v. Raines, 241 Ark. 1071, 411 S.W.2d 486 (1967). The appellant, however, misconstrues the term “public use in fact”, as used in that case. In Raines, the City of Little Rock had issued revenue bonds and levied taxes pursuant to Amendment 49 and implementing legislation (Ark. Stat. Ann. §§ 19-2702-19-2719 (Repl.1956), and was attempting to condemn property for an industrial park in conjunction with a port authority. We said that cities may exercise eminent domain only as expressly granted by the constitution or statutes and such grants are to be strictly construed against the condemnor. We held that neither Amendment 49 nor implementing legislation delegated to the cities the right of eminent domain for an industrial park. The right must be given for a use that in fact directly benefits the public. The point the appellant makes is misguided. The distinction between public and private use is qualitative-not quantitative. In discussing Ark. Stat. Ann. Section § 76-110, the court in Pippin [v. May], supra [78 Ark. 18, 93 S.W. 64 (1906) ], states:
The character of a road, whether public or private is not determined by its length or the places to which it leads, nor by the number of persons using it. If it is free and common to all citizens, it is a public road though but few people travel wpon it.
Dowling, 278 Ark. at 143-4, 644 S.W.2d at 265 (emphasis in original); see also Hale [v. Southwest Ark. Water Dist.], 244 Ark. [647,] at 651, 427 S.W.2d [14,] at 16 [ (1968) ] (“Nor can we find anything to the contrary in City of Little Rock v. Raines.”).
Linder, 2010 Ark. 117, at 12-15, 362 S.W.3d at 896-98.
In its amended order in the instant case, the circuit court found as follows regarding the right of the public to use the proposed pipeline:
Arkansas Midstream refers to the proposed line as the “Sexton line.” The Sexton line will be available to serve multiple natural gas producers who have working interests in Sections 5, 6, 7, 8, and 18. One of the working interest owners is Chesapeake Operating, Inc., as agent for Chesapeake Exploration, L.L.C. However, there are multiple other working interest owners including SEECO, Inc., XTO Energy, Inc., and Dan A. Hughes Company, having leasehold interests and thus working interests in one or more of the gas production units created in Sections 5, 6, 7, 8, and 18 [that] would have access to transport produced natural gas through the Sexton line. Moreover, there is un-leased acreage in Section 5, 6, 7, and 8. The owners of the unleased mineral interests may elect to participate as working interest owners and, also, would have access to the Sexton line for the transportation of produced natural gas. In addition to working interest owners, there are scores of overriding royalty interests or royalty interests from the sale of natural gas produced in the identified sections.
As the circuit court’s findings of fact clearly illustrate, Midstream’s proposed pipeline is available to “multiple natural gas producers who have working interests” in the surrounding area in addition to Chesapeake. Furthermore, the areas to be served by Midstream’s proposed pipeline include owners of unleased mineral interests who would have access to the proposed pipeline if they elected to participate as working-interest owners in the future. As in Linder, it is clear that Midstream plans to operate its natural gas pipeline as a common carrier, meaning that the public has the equal right to use the pipeline to transport natural gas. Because of this, section 23-15-101 has not granted the power of eminent domain to | inMidstream for a private use in violation of Article 2, section 22 of the Arkansas Constitution.
We hold, as we did in Linder, that section 23-15-101 is not unconstitutional as applied to the facts of this case. By exercising the power of eminent domain as a common carrier under section 23-15-101, Midstream must afford the public the equal right to use the pipeline to transport natural gas. We acknowledged in Linder that “the character of a taking, whether public or private, is determined by the extent of the right to use it, and not by the extent to which the right is exercised.” Linder, 2010 Ark. 117, at 13, 362 S.W.3d at 897; see also Ozark Coal Co. v. Pennsylvania Anthracite R. Co., 97 Ark. 495, 134 S.W. 634 (1911) (“If all the people have the right to use it, it is a public way, although the number who have occasion to exercise the right is very small”). Not only the present demands of the public, but those which may be fairly anticipated in the future, are considered in determining whether the taking of property is for a public use. See Linder, supra. The same holds true for the case at hand.
b. Facial Challenge
The Smiths also mount a facial challenge to section 23-15-101 arguing that “its plain language would allow for a delegation of the power of eminent domain to take private property for a private use.” The Smiths then attempt to demonstrate, hypothetically, how section 23-15-101 could be applied in an unconstitutional manner.
|nThis court has said that “[a] facial invalidation of a statute is appropriate if it can be shown that under no circumstances can the statute be constitutionally applied.” Linder v. Linder, 348 Ark. 322, 349, 72 S.W.3d 841, 856 (2002) (emphasis in original); McDougal v. State, 324 Ark. 354, 360, 922 S.W.2d 323, 326 (1996) (one cannot challenge a statute “on the ground that it may conceivably be applied in hypothetical situations not before the court”); see also Los Angeles Police Dep’t v. United Reporting Publishing Corp., 528 U.S. 32, 38, 120 S.Ct. 483, 145 L.Ed.2d 451 (1999) (“The traditional rule is that ‘a person to whom a statute may constitutionally be applied may not challenge the statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the court.’”). Because we hold that section 23-15-101 has been constitutionally applied to the facts of this case, we further hold that a facial invalidation of section 23-15-101 cannot obtain.
c. Vagueness
The Smiths further assert that section 23-15-101 is void for vagueness under the due process clause. A statute is unconstitutionally vague under due-process standards if it does not give a person of ordinary intelligence fair notice of what is prohibited, and, in addition, it is so vague and standardless that it allows for arbitrary and discriminatory enforcement. Landmark Novelties, Inc. v. Arkansas State Bd. of Pharmacy, 2010 Ark. 40, 358 S.W.3d 890. In contrast, a statute is constitutional if its language conveys sufficient warning when measured by common understanding and practice. Id. A statute must not be so vague and standardless | lgthat it leaves judges free to decide, without any legally fixed standards, what is prohibited and what is not on a case-by-case basis. Arkansas Tobacco Control Bd. v. Sitton, 357 Ark. 357, 166 S.W.3d 550 (2004).
The Smiths’ vagueness argument is without merit. As an initial matter, we question whether the Smiths have standing to assert a vagueness challenge to section 23-15-101. This court has recognized that a law is unconstitutionally vague if it “either forbids or requires the doing of an act in terms so vague that persons of ordinary intelligence must necessarily guess at its meaning and differ as to its application.” Benton County Stone Co., Inc. v. Benton County Planning Bd., 374 Ark. 519, 523, 288 S.W.3d 653, 656 (2008). In the instant case, section 23-15-101 is a delegation of the power of eminent domain to pipeline companies, and by its express language, it neither requires nor forbids the Smiths to act in any way. In general, a party lacks standing to challenge a statute for vagueness unless it applies to his or her own conduct. See, e.g., United States v. Woods, 915 F.2d 854, 862 (3d Cir.1990) (“[0]utside of the First Amendment context, a party has standing to raise a vagueness challenge only if the challenged statute is vague as to that party’s conduct.”) cf. Kale v. Arkansas State Medical Bd., 367 Ark. 151, 157, 238 S.W.3d 89, 93 (2006) (“When challenging the constitutionality of a statute on the grounds of vagueness, the individual challenging the statute must be one of the ‘entrapped innocent,’ who has not received fair warning.”). Again, section 23-15-101 neither requires nor forbids the Smiths to act in any way. For this reason, the Smiths lack 11sstanding to assert that section 23-15-101 is vague as to their conduct, and we will not address this point.
As a final point, the Smiths assert that Arkansas Code Annotated section 18-15-1303 does not delegate the power of eminent domain to Midstream for the taking of private property. We need not address this point in light of our holding that the condemnation is appropriate under section 23-15-101.
Affirmed.
HANNAH, C.J., not participating.
. The Smiths also questioned Midstream’s failure to obtain a certificate of convenience and necessity from the Arkansas Public Service Commission. Midstream thereafter applied to the Public Service Commission for a declaratory order determining whether it was required to obtain a certificate of convenience and necessity in order to exercise the power of eminent domain for the construction of a natural gas pipeline. On May 30, 2008, an administrative law judge determined that Midstream was not required to obtain a certificate of convenience and necessity because the Public Service Commission lacked regulatory authority over Midstream and its proposed pipeline project.
. This order refers to "ACA 3-15-101.” This clearly is a misprision as the code section at issue in this case is Arkansas Code Annotated section 23-15-101. | [
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McCULLOCH, C. J.
E. C. Brogan, a citizen of Sebastian County, died in the year 1910, leaving an instrument purporting to be his last will and testament whereby he devised and bequeathed his large estate, consisting of property both real and personal, to his daughter, Mary F. Raymond, with contingent remainder over to her issue, if any survived her and attained the age of twelve years, and, if none, then to trustees for certain charitable purposes. Three executors were named, who were also designated as trustees under the will. Mrs. Raymond in stituted a contest, and while the cause was pending in the circuit court she entered into an agreement with the trustees, acting under the directions of the chancery court, to compromise the suit on the terms then agreed upon. The trustees filed their petition in the chancery court for advice and directions concerning the consummation of the compromise which was by decree of the chancery court duly approved.
The charity specified in the will was the establishment of a college for young men under the direction of the Roman Catholic church with the approval of the bishop of the diocese. The Catholic bishop objected to a confirmation of the settlement, and he was made a party to the chancery proceedings, and prosecuted an appeal to this court. We decided on that appeal that the chancery court had no jurisdiction to render the decree, and we reversed the same with directions to dismiss the petition of the trustees. Morris v. Boyd, 110 Ark. 468. The will contest was then reinstated and proceeded to a final judgment in the circuit court sustaining the contest and declaring the will to be not the will of Brogan. In the meantime the trustees had applied to the chancery court for directions concerning the contest of the will, and that court had entered an order directing them to defend the will in the contest, and to incur the necessary expenses in doing so. No appeal was prosecuted from that order. The judgment in the will contest case was appealed to this court and was affirmed, the appeal being prosecuted by the Catholic bishop. Morris v. Raymond, 132 Ark. 450. Thereupon the trustees presented their petition to the chancery court for an allowance of attorneys’ fees as expenses of the will contest and also an allowance of compensation to the trustees themselves for their services. The chancery court allowed the sum of $1,000 as attorneys’ fees in addition to the sum of $500 already paid, and also allowed the trustees the sum of $1,000 as compensation for themselves for their services, and declared both sums liens on the estate.
Mrs. Raymond was the sole heir at law of E. C. Brogan, and she has prosecuted this appeal from the decree of the chancery court just referred to.
The authorities cited in support of the court’s ruling relate to the duty of executors to defend the will of a decedent and the right of the probate court to allow them their atorneys’ fees and compensation for their services while handling the estate, but none of them reach to the question of the jurisdiction of the chancery court to take control of the trust estate during the pendency in the probate court of a contest over the will which created the trust and to charge the estate with expenses incurred by the trustees. In fact, we are unable to find any authorities which tend to sustain the jurisdiction of the chancery court to make such a decree, and we think that the case of Morris v. Boyd, supra, conclusively decides that the chancery court is without jurisdiction. In that case we said: “No trust was created except upon a definite failure of issue of the testator’s daughter, and unless the will is valid no trust can ever arise. The question of the validity of the will purporting to create the trust rests upon the decision of another court of exclusive jurisdiction. It is not contended that the court of equity has jurisdiction over the contest of a will, nor is there any ambiguity in the terms of the instrument which calls for construction. This proceeding merely involves ,a compromise of the will contest by the contesting heirs and the trustees, whereby the estate is to be divided according to their judgment; and the court’s approval or authority with respect to that compromise is sought.”
If the court had no jurisdiction to authorize trusteed to compromise the contest and divide the estate, which was entirely dependent upon the validity of the will, then' it necessarily follows that, since the will had been broken and was as if it had never been executed, the court had no jurisdiction to incumber the property with a charge for the expenses of the contest or for the services of the trustees. There being no valid will, no trust was ever created, and the property became vested in Mrs. Raymond as the sole heir of the decedent immediately upon his death.
We have no question presented here of the authority of the executor under the direction of the probate court to resist the contest of the will and to pay the expenses of the contest out of the estate under his control. It is conceded that the individuals who acted as executors were allowed their statutory commissions on the estate which they administered, but the question presented here is whether the chancery court had jurisdiction, under the guise of administering a trust, to charge the expenses of a contest against the property of the heirs. Chancery courts have jurisdiction to enforce trusts, but no authority to create them; and when it turns out that a will or other instrument which creates a trust has no legal existence, then the jurisdiction of chancery to enforce the trust fails. We think that there is no such jurisdiction in the chancery court, and that this necessarily follows from the decision in Morris v. Boyd, supra.
The decree is, therefore, reversed and-the cause remanded with directions to dismiss the petition.
HART and HUMPHREYS, JJ., dissent. | [
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McCULLOCH, C. J.
This is an action instituted by appellants, W. B. Lane and F. S. Horton, against appellees to recover commissions alleged to have been earned in the sale of a tract of land containing 1,575 acres, the property of .appellees, situated in Ouachita County, Arkansas. Appellants were separately engaged in the real estate business, and Lane secured a contract from appellees allowing him to sell the land and to receive as his commission all above a certain stipulated net price. Horton heard that the land was for sale through Lane, and he found a purchaser and he and Lane joined in negotiating the sale to one Cookman, who lived in Colorado.
The contract between Lane and appellees was executed in December, 1913, and it provided that any sale made thereunder must be closed up by December 1, 1914. Under the terms of the negotiated sale to Cookman, the latter was to pay $2,800 in cash, and execute five notes, each for $2,800, and convey to appellees his equity in certain real.estate in Leadville, Colorado. The sale to Cookman was negotiated in August, 1914, and, pursuant to the terms of the sale, appellees executed a warranty deed and deposited the same in escrow with one of the banks in the city of Hope, Arkansas, and also delivered to the bank at the same time an abstract of title, and the deed was to be delivered to Cookman upon his delivery of a deed conveying to appellee the Colorado property and the notes and the cash payment. Cookman delivered the deed to the bank, but did not make the cash payment. An addition was made to the abstract in September, and immediately thereafter the abstract was forwarded to Cookman. On the last day of November, 1914, one of the appellants telegraphed appellee, J. B. Jackson, to come to Hope, and when the latter reached there certain objections to the abstract were made known to him. The abstract was not, however, returned to him until December 24, and in the meantime he instructed the bank to return the deed and refused to proceed any further with the negotiations. The evidence tends to show that there were certain defects in the title to some of the lands, but according to the testimony of appellees those defects were not called to their attention until the last day of November, 1914, which was one day before the expiration of the time for closing the deal.
It is alleged in the complaint, and the testimony tends to establish it, that if a sale to Cookman had been consummated appellants would have earned a cash commission of $1,125 and that the equity in the Colorado property, which they were to receive as a part of their commission, was of the value of $4,000, making the total commission which they were to receive the sum of $5,125.
The first instruction requested by appellant, and which the court refused to give, was a peremptory one, in substance telling the jury that under the evidence adduced appellants were entitled to a verdict for the recovery of $1,125 and the reasonable cash market value of the equity in the Colorado property. This instruction was properly refused, for the reason that the evidence did not establish beyond dispute appellant’s right of recovery. It is true that they proved their contract with appellee under which they operated, and they also proved the unconsummated sale to Cookman, but according to the testimony their right of recovery was de pendent upon the deal being closed up by a certain date, i. e., December 1, 1914, and it was a question for the jury to determine whether appellants or the purchaser they produced, acted in good faith in waiting until the last day to point out objections to the abstract of title. Under a contract specifying the time for making a sale, it is the duty of the party claiming the commission to comply with the terms of the contract in that respect, otherwise the commission is not earned. Murray v. Miller, 112 Ark. 232.
Cookman paid nothing on the purchase price and did not bind himself in any way to accept the deed. He had at most only an option to purchase, and in order to take advantage of the option it was necessary for him to comply with the terms of the sale within the specified time. Indiana & Arkansas Lumber & Manufacturing Co. v. Pharr, 82 Ark. 573.
Another instruction requested by appellants recited the terms of the contract between them and appellees, and also recited the facts concerning the negotiations with Cookman, and then proceeded as follows:
“Now you are told that under defendant’s contract of December 31, 1913, and after the plaintiffs had procured a purchaser for said 1,575 acres of said land, it became and was the duty of the defendants to furnish to the purchaser, Cookman, an abstract of title to said lands, showing the title to said lands to be fully vested in them, and if you find from the evidence that they failed to do so, or that said defendants failed or refused thereafter to furnish such abstract of title, and while the said Cookman was ready, willing and able to buy the said lands on the conditions named in the .deed of the defendants of August 28,1914, then it will be your duty to return a verdict for the plaintiffs.”
The objection to this instruction is that it left out of consideration entirely the question of good faith on the part of Cookman and appellants in failing to call attention to defects in the abstract at an earlier period in the negotiations than the last day before the expiration of the specified time. Under this instruction the jury would have been warranted in finding in favor of appellants, notwithstanding they had withheld the objections until it was too late to complete the abstract or perfect the title before the .expiration of the time for consummating the sale. According to the undisputed evidence adduced, appellees furnished the abstract more than three months before the date for closing the deal, and it was the duty of appellants or the proposed purchaser, Cookman, to examine the abstract and point out defects in apt time. We think the court did not err in refusing to give this instruction.
The instructions given by the court submitting the case to the jury were free from objection and correctly presented the law of the case.
We fail to discover any error in the record.
Judgment affirmed. | [
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HUMPHREYS, J.
On the 12th day of September, 1916, appellant brought suit against appellee in the Southern District of the Prairie Circuit Court to recover $15,900 damages on account of an alleged breach of a contract entered into between appellant and appellee in July, 1905, alleged in substance to be that they purchased a large tract of land in Prairie County, Arkansas, at a total cost of $31,800; that appellant should have the exclusive right to fix the sales price and sell the land and divide the net profit between them equally; that appellee would join appellant in a general warranty deed in conveyance of same to such purchaser as appellant might designate. It was also alleged in the complaint that pursuant to the agreement appellant found a purchaser on the 19th day of June, 1914, who was willing to pay $63,600 for said tract; that appellee refused to join in the deed to the purchaser, thereby breaching the contract, to appellant’s damage in one-half of the net profit, or in the sum of $15,900.
The issue upon which the case went off arose on a plea of res adjudicata filed by appellee. The plea set forth' that in a foreclosure suit between the same parties in the Northern District of Prairie Chancery Court, appellant, by way of cross-bill, set up as a defense in the foreclosure proceeding the same matters set up by him as a basis of his suit for breach of contract, that appellee filed a response to the cross-complaint in that case; that testimony was introduced on the issues joined by the cross-complaint and answer; that final decree was rendered in that case at the April term, 1915, of the Prairie Chancery Court, dismissing the cross-hill for want of equity.
The court heard the plea of res adjudicata upon the pleadings in this case and the transcript in the foreclosure-case of Bowman v. Sims and sustained appellee’s plea of res adjudicata and rendered judgment for appellee. Prom this judgment an appeal has been properly prosecuted to this court.
The question to be determined upon appeal is whether or not the issue joined on appellant’s cross-bill and appellee’s reply thereto in the foreclosure suit of Sims v. Bowman, which was styled in the Supreme Court “ Bowman v. Sims," No. 3935, is the same issue in substance presented by the pleadings in this suit.
On or about the first day of June, 1905, appellant and appellee purchased 1,590 acres of land called the Letch-worth land. John Sims advanced the purchase money necessary to buy the tract and took a mortgage on this tract and an additional 200 acre tract, from C. L. Bowman and wife, to secure the notes executed to him for one-half of the purchase money. The notes were not paid, and the foreclosure suit, styled “ Bowman v. Sims’’ in the Supreme Court, was instituted to recover on the notes and enforce the mortgage lien against both tracts of land. The damages claimed in the instant suit grew out of the alleged refusal of John Sims to join with C. L. Bowman in the execution of a warranty deed to the purchaser alleged to have been procured by Bowman. The cross-bill filed by appellant in the foreclosure suit in part alleged in substance that by agreement the notes executed by Bowman to Sims for one-half of the purchase money should not be paid until the land was sold; that this agreement was the inducement which led appellant to execute the notes and mortgages to appellee; that appellant should have the exclusive right to fix the sales price and to sell said land; that said appellee agreed to convey to such purchaser as the said Bowman might find and at the price fixed by said Bowman; that on or about the 19th day of June, 1914, appellant found a purchaser who was able and willing to buy said land, but appellee declined to execute a deed to said land as agreed. The cross-complaint contained other matters unnecessary to set out in this opinion as they do not bear directly upon the plea of res adjudicata presented by the pleadings in this case. The prayer of appellant’s cross-bill not only requested special relief but asked, that appellee’s bill, seeking a recovery on his notes and mortgages, be dismissed, and for all other just and proper relief.
Appellee, in reply to the cross-bill, denied these allegations.
Evidence was introduced on both sides as to the nature and character of the contract entered into by appellant and appellee.
Upon final hearing, judgment was rendered dismissing the cross-complaint for want of equity and the court rendered judgment in favor of appellee on his note and mortgages. An appeal was prosecuted in that case to the Supreme Court, where the decree of the chancellor was affirmed.
It is insisted by appellant that the contract was pleaded in the foreclosure proceeding for the sole purpose of determining whether or not the notes sued upon were due; also that the evidence introduced, pro and eon, as to the nature and character of the contract was for the same purpose. We can not agree 'with learned counsel in this contention. the scope of the pleadings and evidence, as well as the prayer in the foreclosure proceeding, authorized the court in granting to appellant, C. L. Bowman, all the relief to which be was entitled growing out of bis alleged contract, if established, and any breach thereof. He clearly put the nature, character and effect of bis contract in issue in bis cross-bill in the foreclosure proceeding. Appellant, C. L. Bowman, did not admit bis liability on the notes and defend solely on the ground that they were not due, but went further, and asked the court to grant him all the relief to which be was entitled under the allegations in bis cross-complaint. One of the allegations was that be was induced to sign the notes and execute the mortgages by a contract to the effect - that appellee, Sims, would join him in a conveyance to a purchaser in case be found one who would pay a profit for the land, and that be did find one who was able and willing to purchase the land at a large profit and that appellee Sims refused to execute a deed to him. This allegation, if it had been established by the evidence, would have warranted the court in allowing Sims any damage be might have sustained by reason of the breach of the contract. We think the issue presented by the pleadings in the instant case clearly within the matters, issues and points of controversy litigated and necessarily decided in the foreclosure proceeding.
Our findings bring this case clearly within tbe rule governing res adjudicata laid down by tbe following authorities: Shall v. Biscoe, 18 Ark. 142; Harris v. Townsend, 52 Ark. 411; McCombs v. Wall, 66 Ark. 336; Edwards v. Wallace, 108 Ark. 574; Vol. 24 (2 ed.) Am. & Eng. Enc. of Law, p. 784.
No error appearing in tbe record, tbe judgment is affirmed. | [
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McCULLOCH, C. J.
A certain road improvement district was duly formed in Crittenden County pursuant to Act No. 338 of the General Assembly of 1915, an assessment of benefits was made in accordance with the terms of the statute and reported to the county court for approval or rejection. Notice was given and at the hearing the county court made and entered an order confirming the assessments, from which order appeals were duly prosecuted to the circuit court by property owners and also by the commissioners of the district. When the cause was reached for hearing in the circuit court, motions to dismiss each of the appeals were presented, and the court overruled the same, and proceeded to hear the cause on both appeals, and an appeal has been prosecuted to this court by appellant, one of the property owners, from the judgment of the circuit court.
There was no bill of exceptions filed bringing upon the record the testimony and other oral proceedings, and it is conceded by counsel for appellant that there is nothing for this court to review with respect to the alleged errors of the court on the appeal of the property owners. That concession is, of course, correct, for there is no error on the face of the record in that particular, inasmuch as there is no bill of exceptions, and we must indulge the presumption that the finding of the court as to the correctness of the assessments was sustained by sufficient evidence.
It is contended, however, that the alleged error of ■the court in refusing to dismiss the appeal of the com missioners is one which appears upon the face of the .record itself without a bill of exceptions and is properly before us for review. Appellant contends, in other words, that the circuit court erred in refusing to dismiss the appeal of the commissioners, it being contended that the statute does not authorize an appeal on the part of the commissioners, except for a refusal of the county court to enter its judgment approving or rejecting the assessments. If counsel for appellant are correct in their contention as to the state of the law on this subject, the question is properly before us for review, for the error of the court in refusing to dismiss the appeal, if it was an error, is one which appears on the face of the record.
Section 13 of the statute in question provides that after the assessors have completed their work they shall certify a list of the assessments to the commissioners, who shall in turn file the same with the county clerk and that notice of a public hearing before the county court shall be given, and that the county court shall “hear and determine the justness of any assessment of benefits, or damages, and is hereby authorized to equalize, lower or raise any assessment upon a proper showing to the court. ’ ’
The next section reads as follows:
“Section 14. At the hearing provided for in the preceding section and after the county court shall have considered the. assessment of benefits, it shall enter its findings thereon, either confirming the assessment of benefits against said property, increasing or diminishing same, and the order made by the county court shall have all the force and effect of a judgment against all real property in said district, and it shall be deemed final, conclusive, binding and incontestable except by direct attack on appeal.
“Any owner of real property within the district may appeal from the judgment fixing the assessment of benefits or damages within ten days by filing an affidavit for appeal and stating therein the special matter appealed from, but such appeal shall affect only the par ticular tract of land or other real property concerning which said appeal is taken, and oh appeal only the special matters set up in said affidavit shall he considered by the circuit court.
“If no appeal is taken within that time such judgment shall be deemed final, conclusive and binding upon all real property in the district, and the owners thereof, and said assessment of benefits shall not be subject to collateral attack.
“The Board of Commissioners on behalf of the district, or any owner of real property therein may likewise appeal from any order of the county court refusing to enter such judgment, and said county court may be compelled by mandamus to enter such judgment. ’ ’
Counsel for appellees defend the ruling of the court in sustaining their appeal on the ground that section 13 authorizes an appeal by the commissioners from all orders and judgments of the county court, but we do not think that their contention is sound in this respect. The language of the statute is a little peculiar when read literally, in allowing appeals merely from the refusal of the court “to enter such judgment,” but such is indeed the language of the statute, and we' are not authorized to depart from it and extend this provision so as to allow an appeal from judgments which the court in fact enters. The second paragraph in the section clearly gives the property owners the right to appeal from any order of the court affecting the assessments, and the fact that their right to appeal is renewed in another form in the last paragraph coupled with the right of the commissioners to take an appeal, shows that the law-makers meant something else, and that the right of appeal under the last paragraph was intended to reach only to the refusal of the court to enter a judgment on the assessments. That paragraph gives a remedy either to the commissioners or to property owners in the district by appeal or by writ of mandamus to compel the court to enter a judgment approving or rejecting the assessments.
There is another section, however, which we are of the opinion does give the right of appeal to property owners and to the commissioners alike from any and all judgments of the court. That is section 40, which reads in part as follows:
“That the county court shall be open at all times for the purpose of making an order or entering any judgment necessary for carrying forward the work of improvement contemplated by this act. To that end the county court may at any regular, special or adjourned term, make any and all orders and judgments when called upon by the Board of Commissioners, and said orders and judgments shall have the same force and effect as if entered at a regular term of said court.
“Any owner of real property, or the Board of Commissioners, may appeal from the orders and judgments of the county court within ten days after it is entered by filing an affidavit for appeal to the circuit court, and stating therein the special grounds on which said appeal is taken, and unless said affidavit is so filed within said time all of the orders and judgments so entered shall be final, binding and conclusive, and shall not be subject to collateral attack, but only on direct attack by appeal taken within said time.
“If the county court fails or refuses to make any necessary orders or judgments when called upon by the Board of Commissioners, or any officer of said district, the county court may by mandamus be required to enter said order or judgment. To this end the circuit court having jurisdiction is hereby vested with authority to hear and determine any mandamus, injunction, or other legal proceedings relative to said district, in vacation, and the ruling made by the circuit judge in vacation shall have the same force and effect as if made in term time, and shall not be questioned thereafter, either in law or equity; provided, however, any landowner or the Board of Commissioners may appeal from said order or ruling to the Supreme Court of Arkansas, upon the terms and conditions now prescribed by law.”
It is very earnestly argned by counsel for appellant that this section does not enlarge, the scope of appeals allowed in section 14, but we think that counsel are mistaken in this. Section 40 is too broad in its terms to be ignored, and unless it enlarges the right of appeal it would be given no effect at all. It might be argued with some degree of plausibility that this section referred to orders of the county court made subsequently to the final approval of the assessments concerning the further progress of the work of improvement, but when the section is carefully analyzed it is seen that the law-makers intended to make it apply to all orders of the county court, from first to last, and to provide that the county court shall be open at all times for the purpose of making any •such orders or-entering any judgments in carrying forward the purposes of the organization, and to confer the right of appeal upon the property owners and the Board •of Commissioners from any order or judgment of the court.
Our conclusion is that the circuit court properly construed the statute and was correct in refusing to dismiss •the appeal of the commissioners.
Judgment affirmed. | [
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HART, J.
John Wolf prosecutes this appeal to reverse a judgment of the circuit court convicting him of the crime of horse racing, charged to have been committed contrary to Act 55 of the Acts of 1907. See Acts of 1907, p. 134. The act is as follows:
“Section 1. That hereafter it shall be unlawful to bet in this State, directly or indirectly, by selling or buying pools or otherwise, any money or other valuable thing, on any horse race of any kind whether had or run in this State or out of this State.
“Section 2. That any person who shall violate section one of this act shall be deemed guilty of a misdemeanor and for the first offense, on conviction shall be fined in any sum not less than ten dollars nor more than twenty-five dollars; and for the second offense, on conviction shall be fined in any sum not less than twenty-five nor more than one hundred dollars, and for all offenses after the second, on conviction shall be fined in any sum not more than five hundred dollars and imprisoned in the county jail for a term of not less than thirty days nor more than sis months, and every bet, wager, sale of pools or purchase of pools shall be deemed a separate offense.”
It is first insisted that the judgment must be reversed because the offense is a misdemeanor, and the conviction for the first offense did not occur within one year before the return of the indictment for the second offense as is required by our statute in indictments for misdemeanors. We do not think this contention is sound. In the first place, it may be said that statutes which provide for increased penalties when committed by prior offenders are uniformly upheld. State v. Burgett, 22 Ark. 323; Notes to 24 L. R. A. (N. S.) 432; 9 A. & E. Ann. Cas. 768, and Ann. Cas. 1914 C, at 565.
In some States the statute provides that in case of a subsequent conviction of the same person during the year, the punishment shall be increased. Under such statutes, of course, both the prior and subsequent offense must occur within the year. It will be observed that our statute contains no such limitation. It only provides an additional punishment for one who is convicted of a crime after having been previously convicted of the same kind of crime. The prior offense only affects the punishment for the subsequent offense, and for that reason it is not necessary to charge and prove that the prior offense was committed within the statutory period for returning an indictment for the subsequent offense.
It is also contended by counsel for the appellant that the evidence is not sufficient to warrant the verdict. We do not agree with counsel in his argument on this ground. Three witnesses for the State were examined and cross-examined at length. It would unduly extend this opinion to set out their testimony at length, and we have concluded to only give a brief summary of it.
The offense charged is a misdemeanor, and accordng to the testimony of E. Gr. Morris he went to the appellant’s place of business in Hot Springs, Grarland County, Arkansas, or telephoned to him there several times within 12 months before the return of the indictment in this ease, and had the appellant to wire some bets away for him on horses. The witness would bet whatever he chose to bet at the time, and there was a winning or losing of money as a result of these wagers. There was no money passed between them, but it was agreed and understood that the loser would pay the winner.
It is fairly inferable from the extended cross-examination of this witness that the transactions had by him with the appellant were wagers on races that took place without the State.
The language of the statute includes betting by selling pools or otherwise for money or other valuable thing on any horse race of any kind whether run in this State or out of the State. It will be observed that the language of the statute is very broad and comprehensive. It does not require that money should be bet. The agreement between the parties that the loser should pay to the winner the amount due him as a result of their wagers, brings the transaction within the prohibition of the statute.
We have carefully read the record, and it is fairly inferable from it that appellant wired to a point without the State a bet for the witness on a horse race to be run outside the State and agreed to pay the witness if the horse he bet on should win in the race. This warranted the jury in finding appellant guilty.
It is also insisted that the court erred in giving the following instruction:
“The evidence that the witness may have telephoned the defendant to bet money on a horse race and that he supposed that defendant telephoned the bet away would not be sufficient to authorize you to convict the defendant, but before you can convict him the evidence must show that a wager was placed with him and that he accepted it. As I have stated in the instructions, you must find that he bet money or something of value. But on that point, to amplify it a little bit more and apply it to the evidence, if you believe from the evidence, beyond a reasonable doubt, that the witness telephoned or told him that he wanted to bet or to place such money on a certain horse in a race, and that a horse race was had in which that horse ran, and the parties treated that as a binding obligation after the result of that race, either as having won or lost, one or the other, and treated it between themselves as a binding obligation, then the court would instruct you that that would be something of value, .and it would be a wager the same as if the cash money had been placed.”
It is contended that the vice of this instruction consists in making the guilt of appellant depend upon whether or not the parties after the result of the race treated their agreement which has been hereinbefore recited as a binding obligation. We do not agree with counsel in this contention. Of course, after a race had been run, the parties could not then agree that they had made a wager and thus bring one of them under the ban of the statute. But we do not think the instruction fairly susceptible to this construction. It leaves to the jury the truth or falsity of a series of acts between the parties and makes the guilt or innocence of the appellant depend upon the finding of the jury as to all these acts. In short, the guilt of appellant is made to depend upon the finding of the jury as to a series of acts connected together and not upon any of them singly.
■ We have carefully examined the record and find no reversible error in it. Therefore, the judgment is affirmed. | [
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WOOD J.
This action was brought by the appellee against the appellants. Appellee alleged that appellants entered his home which he occupied under a lease from the appellants; that appellants drove his wife from his home, took possession of his household and kitchen furniture and threw the same into the public road in the mud while a rain was falling, by which appellee was damaged as follows:
1 piano..............................................................................$250.00
2 brass bed-steads................................................ 22.75
1 wooden bed-stead............................................. 5.00
1 princess dresser................................................... 125.00
1 oak dresser............................................................... 5.00
1 wash stand............................................................... 2.50
1 sewing machine................................................... 17.50
1 ice box ........................................................................ 5.00
1 davenport........................................ 12.50
2 feather beds............................................................ 22.50
2 felt mattresses...................................................... 12.50
1 straw mattress...................................................... 1.25
1 ice cream freezer................................................ 1.25
1 heating stove......................................................... 6.25
1 cook stove.................................................................. 9.00
500 pounds of meat............................................. 125.00
1 bowl and pitcher................................................ 2.50
1 slop jar........................................................................ 1.25
Picture frames ...................................................... 3.00
1 set of cooking utensils................................. 6.25
Stove pipe..................................................................... 1.00
Rocking chair............................................................ 2.50
Plain chair..................................................................... 1.25
1 hand saw..................................................................... 2.00
1 kitchen safe............................................................ 2.50
1 lot of tools................................. 7.50
1 lot of harness......................................................... 15.00
2 tons of cotton-seed.......................................... 300.00
Appellee alleged damage also to his wife and son resulting from exposure in the rain in the sum of $250. He alleged that the acts complained of were maliciously and wantonly done and prayed for punitive damages in the. sum of $1,000. The appellants answered and denied all material allegations of the complaint. The testimony of the appellee tended to sustain the allegation of his complaint as to the illegal and wrongful ejection of his family from the home of appellee and the removing therefrom by the appellants of the items of household and kitchen furniture specified therein, and the placing of the same on the river bank.
The appellants virtually concede here that the ejection was unlawful.. At least, they make no contention that same was lawful. The jury "returned a verdict in favor of the appellee in the sum of $450. Judgment was entered in his favor for that sum, from which is this appeal.
The appellants contend here, first; that the verdict is contrary to the evidence; second, that the court erred in refusing to give instruction No. 9 requested by the appellants, and third; that the court erred in refusing to require the jury to answer the following interrogatory: “If you find for plaintiff, what articles of property do you find were lost, destroyed or damaged, and the value of, or damage to each article?”
1. It could serve no useful purpose to set out and discuss in detail the evidence on the issues of fact. The appellee testified that “they (appellants) threw my stuff on the river bank and when I got back where it was, it was pouring down rain.” His testimony and the testimony of his wife tended to show that a piano, which had cost $275 four months before, was damaged by the rain so that it was “not much ’count, keys all down, not much sound.” He alleged the damage on this item of $250. A couple of bed-room sets, one costing $57 which was new, and the other $65, “went down the river.” -The sewing machine that cost about $19 “that was all right at the time” also went down the river. Appellee lost what was estimated at “about 500 pounds of home killed hog meat” worth about 15 or 16 cents a pound. Appellee had six sets of harness: “got tramped all down in the mud; got tore up; saved one set, worth about $3.50 to $4 a set.” Appellee lost, ‘ ‘'about 30 odd hundred pounds of cottonseed worth about $45 a ton.”
Appellee testified to various other items that were lost or damaged and stated what they were worth. One witness testified that he passed up the river and saw appellee’s piano and household furniture on the bank and that it had then been raining two or three days. Another witness testified that he saw the furniture on the bank of the river the second day after it had been put there and that it was in a bad shape; that the cottón-seed were wet; that hogs and cattle had been tramping over it and that it was impossible for anybody to get a house at that time; that witness tried to get appellees a house and failed; that appellees got an order from the chancellor restraining the appellants from interfering with appellees’ possession and they moved back into the house.
Appellants made no specific objection to the testimony that was offered by the appellee. The testimony of appellee tending to show what he had paid for the articles mentioned in his complaint, the length of time he had used same, their cost, their present worth and damaged condition, was relevant on the issue as to the measure of appellee’s damages. See Perkins v. Ewan, 66 Ark. 175.
2. Appellants’ prayer 9 was as follows: “If plaintiff’s wife took immediate charge of said property after its removal, defendants would not be liable for the value of any of the articles which may have subsequently been lost or injured.” The appellee testified that he left his wife in charge of the household goods the day they were moved by the defendant, and that she was in charge of same when he got back. The appellee was not at home at the time the goods were moved out of the house.
John Stanley testified that he “told the negroes to put the furniture under a pecan tree next to Bogers’ house,” when the wife of plaintiff said: “Don’t put it down there, put it down in front of Mr. Lindley’s house because Walter will be up after a while, and we will take care of it this afternoon.” Witness “sent some lumber up there to floor those vacant tents and she said she did not want it; that Walter would take care of the furniture. ’ ’
The prayer for instruction 9 was not a correct declaration of law for the reason that there was testimony tending to prove that efforts had been made to obtain a house for the appellee, and that none could be found. There was testimony from which the jury might have found that appellee’s property was damaged by reason of its removal from the house by appellants, notwithstanding the appellee’s wife took'immediate charge of the same. The instruction was therefore misleading. Besides, the subject-matter of this prayer for instruction was sufficiently covered by instructions 2 and 3 as follows:
“2. You are instructed, gentlemen, that the act of the defendant in moving from the house, testified about the property mentioned, was a wrongful act, and that the plaintiff is entitled to recover from the defendant the value of any of the property that was lost or destroyed or damaged and injured on account of the wrongful act in moving from the house, except in so far as the act of the plaintiff in failing to care for the property was concerned, and about which I will now-instruct you.
“3. It was the duty of the plaintiff, after his property was removed from the house, and, as soon as he was apprised of its position and condition, to use due diligence and reasonable effort, with the means and opportunity available to him, or reasonably procurable, to protect said property against loss and damage, and to the extent of any loss and damage due to the failure of the plaintiff to exercise such care and diligence, the defendant would not be liable, under the rules as announced to you. ’ ’
3. It was within the discretion of the court to require or not the jury to make special findings as requested by appellants, and the court did not abuse its discretion in refusing to require such special findings. L. R. & Ft. &. Ry. Co. v. Pankhurst, 36 Ark. 371. There is no error in the record and the judgment is affirmed. | [
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WOOD, J.
This is an action brought by the heirs of E. H. Holloway against Joe P. Eagle and the Union Trust Company, as executors of the last will of W. H. Eagle, deceased, and Joe P. Eagle. E. H. Holloway died August 8, 1893 or 1894; his heirs were A. J. Wade, John and C. Y. Holloway, Edna, Elvin and Shelby Miller, who were the children of Sarah Miller, deceased, Mary, Tom and Roy Mason, who were the children of Allie Mason, deceased, Mrs. M. E. Naylor and LeMay Holloway Lewis. Sarah Miller and Allie Mason were the daughters of E. H. Holloway.
.Action was first brought by C. Y. Holloway, who was afterward joined by the other heirs, as parties plaintiff. They alleged in substance that E. H. Holloway died in possession of certain lands (describing them); that a suit was brought by W. H. Eagle & Son (a firm composed of W. H. Eagle and Joe P. Eagle), against W. H. Eagle, as administrator of the estate of E. H. Holloway; that the land described in the complaint was sold to W. H. Eagle & Son; that W. H. Eagle, a member of the firm who purchased the land, was appointed administrator of the estate of E. H. Holloway; that he was also trustee at the time of the sale, and at the time the conveyance was made by the commissioner under such sale; that the estate of W. H. Eagle, deceased, and Joe P. Eagle should be held to account for the rents and profits since the date of the sale, May 23,1895, and they prayed that a master be appointed to state an account of this, and if it be found that the land was subject to an encumbrance due iW. H. Eagle & Son, that they be allowed to redeem same.
The answer denied specifically all the allegations of the complaint and set up as a bar all the statutes of limitation and the statute of nonclaim and pleaded laches. After a great deal of testimony had been taken, the chancellor appointed L. P. Biggs, master, who was satisfactory to both parties, and directed him to examine the testimony already taken and to take further testimony; to ascertain the amount of the original indebtedness due by E. H. Holloway to W. H. Eagle & Son, the amount of rents collected, taxes paid and interest charged, and then report to the court. After the testimony was taken and the report of the master filed, many exceptions to the report of the master were filed by plaintiffs, and the court, after considering the entire record in the case, dismissed the complaint for want of equity, as to all the plaintiffs, except C. Y. Holloway. •
The court found that the defendant, Joe P. Eagle, was guilty of no actual fraud, but held him accountable as trustee, because he had acquired title to the lands through a purchase by W. H. Eagle & Son, and that such purchase of the lands belonging to the estate of E. H. Holloway, by its administrator, W. H. Eagle, rendered .the sale voidable.
The court affirmed the finding of the master, that .Joe P. Eagle was due the estate of E. H. Holloway the .sum of $4,960.53, and that the, plaintiff, C. V. Holloway, was entitled to one-ninth interest in said sum, towit, $551.17, with interest thereon from December 31, 1916, until paid, and rendered a decree in favor of C. Y. Holloway for such sum.
Prom this decree C. Y. Holloway prosecutes this appeal. The other heirs also prosecute the appeal from the decree dismissing their complaint for want of equity, and Joe P. Eagle cross-appealed in this court.
E. H. Holloway was indebted to W. H. Eagle & Son, and to secure such indebtedness he mortgaged to them all his personal property and real estate in Lonoke County; the mortgage covered the real estate lying north and south of what is called in the record “Bayou Meta.” The lands south of Bayou Meta were subject to a prior mortgage executed by Holloway to the Arkansas Loan & Trust Company. Prior to the death of Holloway the trust company had brought suit to foreclose its mortgage; that suit was contested and found its way to the Supreme Court. After Holloway’s death the ease was revived in the Supreme Court in the name of W. H. Eagle, as administrator of the estate of E. H. Holloway, deceased, and the heirs of E. H. Holloway. A receiver was also appointed in this suit. The decree of the lower court was affirmed by the Supreme Court.
While suit was pending in the Supreme Court, W. H. Eagle & Son filed suit to foreclose their mortgage, and made W. H. Eagle administrator of the Holloway heirs, and the receiver appointed in the suit of the trust company, parties to that suit.
A decree of foreclosure was rendered, but no procedure was had against the lands that lay south of the bayou, they being covered by the mortgage of the trust company. The decree was rendered against the land north of the bayou and the clerk of the court was appointed commissioner to sell those lands. A decree of foreclosure was also rendered in the suit of the trust company against the lands south of Bayou Meta, and Max Frolich was appointed commissioner to make the sale of these lands. As shown in his report, “¡W. H. Eagle and Joe P. Eagle, composing the firm of W. H. Eagle & Son, being the highest and best bidders, became the purchaser at that sale.” A report of this sale was made to the court on November 19, 1895, and a deed in pursuance to that sale was of the same date. This deed was made to J. P. Eagle, and the acknowledgment of the deed contains this recital: “On this day, Max Frolich, appointed to execute the decree rendered in this case, produces to the court here his deed to Joe P. Eagle, the purchaser of the lots and premises mentioned and described in said deed, and upon examination of said deed the same is in all things approved.” In the foreclosure sale of W. H. Eagle & Son of the lands north of Bayou Meta, the deed was duly executed, and the acknowledgment was taken in open court, This deed conveyed the lands to W. H. Eagle & Son. The personal property of E. H. Holloway was foreclosed under special power conferred upon the trustee in the mortgage and was purchased by various parties at such sale, and the proceeds credited on the indebtedness of E. H. Holloway to W. H. Eagle & Son.
Joe P. Eagle conveyed the lands south of Bayou Meta to W. H. Eagle & Son on December 13, 1895, by warranty deed, the consideration expressed therein being $3,654.46. On March 3,1900, Joe P. Eagle and wife conveyed all the lands which had been purchased at both foreclosure sales to "W. H. Eagle, and on June 14, 1900, W. H. Eagle and wife conveyed the lands to Joe P. Eagle for the consideration of $5,000, $2,500 cash and $2,500 as an advancement to Joe P. Eagle.
W. H. Eagle died in 1906 and Joe P. Eagle and the Union Trust Company were named as executors of his will. No claim' was filed against his estate by the heirs of E. H. Holloway; the firm of fW. H. Eagle & Son and Joe P. Eagle took possession of the property, after the deeds under the foreclosure sales had been executed and made many extensive and valuable improvements'thereon.
While the evidence in the trial court took a wide range and the record of it here is exceedingly voluminous, we will only discuss such of it as we deem necessary to the issues, which in our view are reduced here to a comparatively narrow compass.
First. The appellants seek to hold J. P. Eagle liable, as trustee, for their benefit. Joe P. Eagle did not occupy any trust relation himself to appellants, but he was cognizant of the relation which his father, W. H. Eagle, sustained to them, as • administrator of the estate of E. H. Holloway. Therefore, the principal question is, was W. H. Eagle a purchaser at the foreclosure sales, and if so, did such purchase render those sales voidable? W. H. Eagle, as administrator of the estate of E. H. Holway, was party defendant in both foreclosure suits at the time the final decree was rendered.
In Eagle v. Terrell, 95 Ark. 434-437, we held broadly that, “Where property of a decedent is sold by a commissioner under order of the court, the executors or administrator can not lawfully become the purchaser at such sale. It is wholly immaterial whether the sale at which the trustee purchases is brought about at his own instance or whether it is made at the instance of another, provided he has a duty to perform with reference to the property to be sold that may be in conflict with his interest as purchaser.” See the many cases cited therein. .
Such sales are voidable at the instance of the heirs of the testator or intestate. See other authorities cited in 2 Crawford’s Digest, p. 2185, § 147.
Joe P. Eagle testified that at the sale of the real estate belonging to the Holloway estate he bid it in to protect his debts; that he and W. H. Eagle were equal partners; that the debts for which the land were sold were obligations to W. H. Eagle & Son; that witness had no conversation with W. H. Eagle with reference to the conveyance of the land by Max Frolich, commissioner, to ÍW. H. Eagle; that he was the real purchaser at the sale and there was no agreement that he would purchase it and then resell or deed it to W. H. Eagle or W. H. Eagle & Son. When he deeded it to W. H. Eagle & Son the consideration was $2,500; he conveyed to W. H. Eagle & Son because he preferred that they carry the land as at that time $2,500 was a good deal of money. He bought the land in his own name. On cross-examination his attention was called to the fact that he had testified that he had purchased the land in his own name for the use of W. H. Eagle & Son, and was asked if that was a mistake and he answered, “I bought it in my own name.” The report of the commissioner, which was introduced in evidence, showed that “the firm of W. H. Eagle & Son was the highest and best bidder; that he, as comjmissioner, did accept and take from said W. H. Eagle & Son as such purchaser, their joint and several bonds,” etc. The deed was made to Joe P. Eagle and the acknowledgment recites that he was the purchaser at the sale.
The report of the commissioner for the sale of the lands north of the bayou shows that the sale was made to iW. H. Eagle & Son as the highest and best bidder and the deed was executed to them. Joe P. Eagle as a member of the firm of W. H. Eagle & Son was the agent for the firm and also of his partner, W. H. Eagle, in making the purchase, and the purchase was as much the purchase of W. H. Eagle as it was for Joe P. Eagle.
It can not be said in view of the above testimony that the finding of the chancellor to the effect that W. H. Eagle was the purchaser at the foreclosure sale is against a clear preponderance of the evidence.
Second. The next question is, were the plaintiffs barred by any of the statutes of limitations? Joe P. Eagle was not himself the administrator of the estate of E. H. Holloway and was not therefore trustee of an express trust; be can only be held'liable on the theory that be acquired property from the trustee of an express trust with the knowledge of all the circumstances going to show that the trustee was deeding the trust property, and therefore bad no title be could convey. Upon this theory and this alone can Joe P Eagle be held as trustee with reference to the property of the estate. This is the theory upon which the court rendered its decree. See Matthews v. Simmons, 49 Ark. 468-475.
Perry, in bis work on Trusts, volume 2, section 860, lays down the doctrine that, “If a trustee, in breach of bis trust, conveys the land to a third person, such third person, if be is an innocent purchaser, for value, without notice, will bold the estate discharged of the trust. But if be received the conveyance with notice, or without paying any consideration, be will be bolden as a trustee; for the cestui que trust may enforce the trust against bim by proceeding in equity. * * * It may be said, that the relation between such bolder of the legal title and the cestui que trust is that of trustee and cestui que trust, and that the same principles apply, respecting the application of the statute, as apply between trustee and cestui que trust in an express trust.”
The same author in section 863 says: “As between trustee and cestui que trust„ in the case of an express trust the statute of limitations has no application, and no length of time is a bar. Against an express and continuing trust time does not run until repudiation or adverse possession by the trustee and knowledge thereof on the part of the cestui.” See also 39 Cyc., p. 600.
In Bland v. Fleeman, 58 Ark. 84-90, we .said: ‘ ‘ The rule, we believe, is universally established that tbe statute will not bar an express trust. ‘But this doctrine,’ says Chief Justice Cockrill, in McGaughey v. Brown, 46 Ark. 34, ‘is subject to two qualifications, namely, that no circumstances exist to raise a presumption of tbe extinguishment of tbe trust,- and that no open denial or repudiation of tbe trust is brought home to tbe knowledge of the parties in interest which requires them to act as upon an asserted adverse title.’ ”
By analogy, courts of equity take the same limitation for their guide that governs courts of law. McGaughey v. Brown, supra.
Immediately after the sales W. H. Eagle and Joe P. Eaglé commenced to deal with the lands as their individual property; they made conveyances of the lands back and forth, the one to the other; they went into possession and made valuable improvements, enjoying the rents and profits. After the death of W. H. Eagle in 1906, administration was immediately had upon his estate, and the same was practically fully administered before this suit was brought in 1913. No demand was made by any of the heirs of E. H. Holloway upon W. H. Eagle or Joe P. Eagle. They all lived in the community and were cognizant of the facts, or had notice of facts and circumstances that would put a man of ordinary prudence and intelligence on inquiry, which in law is tantamount to knowledge of the facts to which such inquiry might lead. Bland v. Fleeman, supra. All the heirs of E. H. Holloway who were of age at the time of the sales, except the married! women, would be barred by the seven years as well as the five years statute of limitations. Secs. 5056 and 5060, Kirby’s Digest. The female heirs, who were alive and married at the time of the sales and their children would be barred by the five-year statute of limitations, because that statute does not except married women, and foreclosure sales are judicial sales. McGaughey v. Brown, supra; Garland County v. Gaines, 47 Ark. 558; McKneely v. Terry, 61 Ark. 541; Gibson v. Herriott, 55 Ark. 85; Nash v. Delinquent Lands, 111 Ark. 164.
It follows that all the appellants, except C. Y. Holloway, are barred by the statute of limitations. They .are also barred, under the same facts by laches, although in the latter case the rule as to limitation is not necessarily a criterion — the time may be longer or shorter, depending upon the particular facts and circumstances in each case. Gibson v. Herriott, supra.
C. Y. Holloway is not barred by the statute of limitation for the reason that he was a minor at the time of the sales, and he instituted this suit one day before the expiration of the three years limit after reaching his majority. Kirby’s Digest, § 5056. Neither is he barred by laches, because he was not sui juris at the time of the sales. iWhile laches could not operate to give him any additional rights, yet a court of equity during the continuance of his minority will not impute to him laches and thus deprive him of the right to sue for his inheritance before the period of limitation applicable to him had expired. Gibson v. Herriott, supra, page 97. See also Stuckey v. Lockard, 87 Ark. 232-240, on rehearing.
Third. This brings us to a consideration of the amount of the decree in favor of C. Y. Holloway. The master’s report shows that “all the attorneys agreed with him that the account which he was directed to make should be stated upon the theory that Joe P. Eagle was a trustee, ’ ’ and that was the theory he adopted. His report shows that he made an exhaustive examination of the evidence that was taken both prior to and after his appointment and made an elaborate report after reviewing the items of the account as rendered in the statement of the expenditures made by Joe P. Eagle in connection with the lands belonging to the estate of E. H. Holloway with which he charged the estate, and of the rents, profits and proceeds of the sale of the land, with which he credited such estate.
It would be wholly impracticable to set out and discuss in detail in this opinion all the evidence bearing upon this issue. The appellants specifically excepted to the finding of the master, charging 10 per cent, interest on the judgments rendered in favor of W. H. Eagle & Son, from November, 1894, to July, 1916, principal and interest amounting in the aggregate to $10,367.43. They also specifically excepted to the finding of the master, charging them with any permanent improvements.
In regard to the interest item, the master’s report is as follows: “Plaintiffs claim credit by way of error against them in the computation of interest in the decree of November 21, 1894. It is apparently true that the amount of the debt and interest does not coincide with the amount of the judgment, but on account of certain credits mentioned one can not be positive to the calculation. Since the decree stood the scrutiny of the court and plaintiffs’ counsel, we ought to assume that they knew what they were doing, and since we do not know what circumstances may have entered in the calculation of this decree I hesitate to correct the seeming error, even if I had the legal right. While I have charged and credited the estate with all the items practically as set forth in the statement filed by Mr. Eagle, I differ with his account as to the method of figuring interest: In his statement Mr. Eagle charges the estate the judgments with interest at 6 per cent, and 10 per cent, from the date thereof until date of payment; all the judgments bear 10 per cent, interest, except $407.94. ’ ’
In their brief in regard to these specific exceptions, the counsel for appellees say that “the master charged the plaintiffs (appellants here) with the highest rate of interest, towit, 10 per cent, in rendering all statements, and gave appellees credit for commissions on sales of land, etc. * * * It would take too much space to set out all the items, but we think we have covered the different classes of items.”
.Appellants contend that the judgments awarding interest at 10 per cent, should not have been considered at all, but that the master should have gone back to the original mortgage and calculated the interest on that. Appellants have not brought into the abstract any evidence tending to prove that the master’s computation of interest was incorrect. The master’s report shows that he had before him the debt, and while there was appar^ ently a discrepancy between the amount of the debt and interest and the amount of the judgment, yet on account of certain credits mentioned he could not be positive of the calculation, and he assumed that the court and counsel for both parties knew what they were about in per mitting the decrees to be rendered bearing 10 per cent, interest. Counsel are mistaken in saying that these judgments should not have been considered at all. Since appellants have elected to treat J. P. Eagle as trustee, the judgments were competent as evidence to be considered by the master in making up his report; he had before him the mortgages which formed a basis for these judgments and it was competent for him to consider them together, and all the evidence taken in connection therewith in ascertaining what was the correct amount of interest to be charged.
The testimony of Judge Thos. C. Trimble, who as attorney was connected with all the suits, and thoroughly familiar with all the transactions, shows that the judgments were based on debts that bore interest at the rate of 10 per cent. His testimony was also based upon the papers that were exhibited to him, which counsel for appellant abstract by saying, “As these things are all set out in the master’s report we think it unnecessary to abstract them further.” Counsel for appellants in their abstract of the master’s report do not set out any of] these papers which the master had before him as evidence. Appellants therefore do not make it appear that there was any error in the findings of the master allowing Joe P. Eagle 10 per cent, interest on the judgments in favor of W. H. Eagle & Son. The chancellor did not find any error in this respect, and the finding of the chancellor is sustained by a preponderance of the evidence. Indeed, there is no evidence in the abstract to the contrary.
Fourth. The other specific exception of appellants to the finding of the master is that he erred in charging C. V. Holloway with any improvements whatever, their contention being that C. V. Holloway could only be charged with the expense of the necessary repairs in making the crops, but not with any permanent improvements. To support their contention, appellants cite and rely upon cases dealing with the trustee of an express trust created by contract or 'operation of law. Such, for exam- pie, as administrators, executors, guardians, etc., or such as a trustee under a deed or other instrument declaring an express trust, or such as a tenant} in common in possession or a mortgagee in possession, or any one in possession of lands which he knows he does- not own. But this case is controlled by a different doctrine from that applicable to any of the above cases'. Joe P. Eagle, as we have seen, is not the trustee of an express trust. None of the duties of such a trustee-devolved upon him. As is said in Matthews v. Simmons, supra, “he only becomes a trustee by construction of law, ’ ’ and is only liable because of that ancient maxim, ignorantia legis neminem ex-cusat. The chancery court found that he was guilty of no fraud. One witness testified that Joe P. Eagle asked him not to bid at the sale. Another testified that she went to Lonoke on the day of the sale, arriving between 8 and 9 o’clock, and that when she arrived the sale had already been held. She intended to bid on some of the land-and asked Joe P. Eagle “if he didn’t have the sale rather early, and he said yes, but there was nobody else coming in to bid.” He also said he would let witness have what land she wanted at the price for which he bought it in. He did not let her have the land she wanted, but some other land. Joe P. Eagle in his testimony denied categorically the above statements. We are unable to determine where the preponderance lies in this issue, and will therefore treat the finding of the trial court as persuasive and adopt it as our own. Leach v. Smith, 130 Ark. 465.
Therefore, since Joe P. Eagle was guilty of no actual fraud, but purchased the land in good faith, doubtless in absolute ignorance of the legal effect of such purchase, and believing he was acquiring a perfect title, he must be dealt with in making the settlement, as the rule of equity and good conscience demands in such cases. After a careful reading and consideration of the master’s report as contained in the record itself, and the testimony as abstracted, we are convinced that the master did not depart from the above rules, but on the contrary observed the same according to the doctrine announced in Stubbs v. Pitts, 84 Ark. 160: “Where a constructive trust was decreed, credit will he allowed for the purchase money-paid,with interest, and the value of improvements made, and will he charged with the rental value of the land during the period of such possession.”
The decree is correct and it is affirmed. | [
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HART, J.
E. J. Lamb prosecutes this appeal to reverse a judgment of conviction against him for the crime of perjury. The indictment charges him with having committed perjury when testifying for the defendant in the case of the State of Arkansas against George Bean charged with unlawfully keeping liquor for sale.
The officers had searched the hotel owned by George Bean and a room in which he and the defendant and two other persons were sitting, for whiskey. A grip containing a number of bottles of whiskey was found by one of the officers on the window ledge just outside the room.
Bean was charged with unlawfully keeping intoxicating liquors for sale, and the defendant was sworn and testified in the case. He testified that he was in the room on the occasion in question, but that none of the parties there raised the window or put any whiskey outside of the window on the sill. The sheriff, Bow Brown, a deputy sheriff, and a policeman of the city of Hot Springs went to the hotel of George Bean in the city of Hot Springs in Garland County, about one o’clock at night to search it for whiskey. The sheriff and Bow Brown went into the building towards the room occupied by George Bean, the defendant, and two other persons.
Brown testified that he went into a front room next to the one occupied by these parties; that about the time he got into the room he heard a window being raised in the next room; that he raised the window in the room where he was and saw a snit case being eased out on the cornice in the next room; that he went ont on the window ledge and got the snit case; that the parties had put the window down after they had put the suit case out; that he heard the sheriff talking in the room from which the suit case had been put out and he then again raised the window and went into the room; that the suit case was opened and found to contain a number of quarts of whiskey in cartons; that he saw an empty carton in the room which was similar to the cartons on the whiskey bottles in the suit case and was marked the same way; that each bottle of the liquor in the suit case was incased in a carton labeled Old Timer’s Whiskey; that the empty carton found in the room bore the very same label as those in the suit case.
The sheriff testified that in a minute or two after he left the deputy sheriff Brown he knocked on the door of the room occupied by Bean and after a brief pause the door was opened and he entered the room; that he found in the room George Bean and his wife, the defendant and another person; that these parties appeared to. be excited; that in a few minutes Brown came into the room through a front window from the coping outside the window; that he was carrying a suit case; that they opened the suit case and it contained a number of quart bottles of whiskey; that each bottle of the whiskey was incased in a carton and each carton was labeled Old Timer’s Whiskey; that they found an empty carton in the same room of the same kind and bearing the same label. The defendant denied that any of the parties in the room placed the whiskey on the coping outside the window on the occasion in question. His testimony was corroborated by that of the other parties in the room/
It is earnestly insisted by counsel for the defendant that the testimony of Row Brown was not sufficiently corroborated to warrant the jury in finding the defendant guilty. We do not agree with counsel in this contention. The old rule that to convict of perjury, two witnesses are necessary has been relaxed; and a conviction may be had upon any legal evidence of a nature and amount sufficient to outweigh that upon which perjury is assigned. In other-words, it is now well settled in this State that such a conviction may be had on the evidence of one witness supported by proof of corroborating circumstances. Of course, the corroborating evidence must go to material testimony adduced by the State, and not to testimony on some immaterial matter. Marvin v. State, 53 Ark. 395, and Grissom v. State, 88 Ark. 115. Tested by this rule, the corroborating testimony was sufficient to warrant the jury in finding the defendant guilty. The testimony of Row Brown, if believed by the jury, shows that some person in the room about to be searched by the officers, raised the window and placed the suit case containing the whiskey on the coping outside the window while the officers were approaching. This was the material matter upon which the perjury was assigned. The defendant had testified that none of the parties in the room had placed the liquor out there.
The sheriff testified that he came into the room in a few minutes after he separated from Brown; that he found George Bean, the defendant and two other persons in the room, and that they appeared to be excited; that in a minute or two Brown opened the window from the outside and came into the room bearing a suit case containing a number of quarts of whiskey; that each bottle of wihskey was incased in a carton bearing a label. An empty carton was found in the room of precisely the same kind and bearing the same label. The record shows that the room searched was on the second floor of the building. The testimony of the sheriff sufficiently corroborated the testimony of Brown to warrant the jury in convicting the defendant.
The defendant also seeks to reverse the judgment by impeaching the verdict of the jury by the testimony of one of the jurors. It is well settled in this State that the testimony of a juror is not competent to impeach a verdict in which he has joined. Turner v. State, 130 Ark. 48; Capps v. State, 109 Ark. 193. The reasons for the rule are given in Barnett Bros. v. Western Assurance Co., 126 Ark. 562.
The case was submitted to the jury under proper instructions and, finding no prejudicial error in the record, the judgment will be affirmed. | [
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McCULLOCH, C. J.
This is an action instituted by a husband against his wife to obtain a decree for divorce on the alleged ground of adultery. The parties intermarried in December, 1914, and lived together until on or about July 2,1917, a girl baby having been born unto them in the meantime, who was about a year and a half old at the time of the separation. The acts of adultery are alleged to have been had with one Swan during the month of May, 1917. The answer of the defendant contained a denial of the charge of adultery, but the court found the issue of fact in favor of the plaintiff and granted the divorce.
The plaintiff is a farmer residing in Lawrence County, out in the country a few miles from Alicia, and defendant’s parents reside in the same neighborhood. The proof shows beyond dispute that the parties did not live happily together after a few weeks subsequent to their intermarriage. The' proof shows, too, that the plaintiff was at fault in that his conduct toward his wife was overbearing, and intolerant, and at times brutal. He admits in his testimony that he determined a few weeks after the marriage that he and his wife could not live happily together and that he would have carried her back to her ■parents if he could have “put her back home in as good shape as he found her.” The proof shows that plaintiff struck his wife on several occasions, once with a bed slat, and his own explanation shows that it was on very trivial grounds that he struck his wife. It seems that during the month of May, 1917, a rumor became current in the neighborhood that the defendant and Swan were corresponding with each other by letter, and that there were perhaps improper relations between the two. The first information communicated to plaintiff concerning the matter was made by defendant’s father, and the plaintiff at once be gan an investigation.which he says convinced him of the infidelity of his wife, and on July 2, he took her back to the home of her parents and left her there. The extent of the communications between defendant and Swan is fully developed in the testimony, and the defendant from the very start made frank admissions concerning them. The evidence shows that defendant wrote to Swan twice, once by postal card and the other time by letter, and in each instance she gave the communication to other parties to mail or deliver. The letter was unsealed and the contents of neither of the communications have been proved, except that one of the witnesses testified that, while he could not remember all of the contents of the letter, it began by addressing Swan as “Dear boy” or “Dear old boy.” It appears from the testimony that defendant and Swan had been sweethearts before her intermarriage with plaintiff. The proof also shows that Swan wrote a letter to defendant in which he stated that rumors were current in the neighborhood concerning their conduct, and that it would be best for them to discontinue further communications. The communications between the defendant and Swan seem to have been conducted without any attempt whatever at secrecy. The letters were unsealed, and were intrusted for delivery to acquaintances who had full opportunity to read them, and who did read them.
The testimony also proved two meetings between defendant and Swan in plaintiff’s absence. On one occasion defendant attended a singing school at a church house in the neighborhood one night, and left the place with Swan before the singing ended. The facts concerning their meeting come from defendant herself, and she states that she started home in company with Swan, but after walking together for a certain distance she heard some one coming, and realizing the awkwardness of the situation she ran away from Swan and went honre alone. Defendant admits that in the letter to Swan she expressed her willingness for him to come to her home to see her while her husband was absent attending a lodge meeting. She states that Swan came to the gate on the occasion mentioned and that she went ont there to meet him. Her husband was absent, but others who lived in the house were there at the time. Defendant denied that there was any criminal intimacy between her and Swan, and there is no proof of such intimacy further than the correspondence and meetings above recited.
The chancellor concluded that acts of adultery were inferable from the proved relationship and communications between the parties. Since we have concluded to dispose of this cause on another issue, which will be presently discussed, it is perhaps unnecessary to determine whether the chancellor was justified in drawing the inference that acts of adultery had been committed between defendant and Swan, but when all the circumstances are considered together the inference is necessarily a very weak one, and it is doubtful, to say the least of it, whether it ought to be indulged so as to convict the defendant of so grave a charge of infidelity to her husband. The defendant from the very start admitted to her husband that she had been guilty of acts of indiscretion, and the openness with which the communications between those parties was conducted evinces a consciousness on her part of slight acts of indiscretion, rather than more serious acts of culpable immorality.
But, without passing on the question of the sufficiency of the evidence to warrant the finding of the chancellor, we pass to the further question in-the case whether or not the alleged offense of adultery was condoned by the plaintiff so as to preclude him from pleading the original act as grounds for divorcee. The proof shows that after plaintiff carried his wife back to her parents on July 2, he visited her several times at that place, but there is a sharp conflict in the testimony as to the character and circumstances of those visits. Defendant testified that plaintiff remained there with her two nights and occupied the same bed with her and the baby. The testimony of others living in the house was to the effect that plaintiff occupied the same room with defendant on those two nights. Plain tiff denied this, however, and introduced testimony tending to show that he did not stay at the house of defendant’s parents on those nights, or on any other night after he carried her hack to the home of her parents. It is unnecessary to determine where the preponderance of testimony on that question lies, for we propose to base our conclusion on other admitted facts concerning the conduct of plaintiff toward his wife.
It is admitted that plaintiff visited his wife at the home of her parents on July 5, and that there in the presence of defendant’s mother the parties agreed upon terms of reconciliation, and that they were to resume their relations as husband and wife, and that she was to return to his home, After entering into this agreement, plaintiff went out to the field where defendant’s father was at work and told the latter about the reconciliation, and received the congratulations and good wishes of his father-in-law. Plaintiff went back to the house, and he and his wife started back on their journey to his home, a distance of about three miles, with the understanding that their reconciliation was complete. When they got to plaintiff’s home, it was about dark, and after remaining there a very short time, perhaps ten or fifteen minutes, plaintiff announced to defendant that he had concluded that they could not get along together and directed that she get together some of her clothes and that he would take her back to her parents. She objected to going back, but he insisted, and against her protest he carried her back to her parents. Plaintiff’s brother was living with him at the time, and they had cultivated a crop together, and the evidence tends to show that plaintiff’s change of mind was brought about on account of his brother’s threat that he would not live there .if defendant was taken back into the home. Plaintiff denied that that was the cause of his change of mind, but he gives such an unsatisfactory explanation of his conduct at that moment that the conclusion is irresistible that his brother’s attitude was the cause of his change of mind. We think the evidence shows that while he had fully made up his mind to take his wife back to his home and to become completely reconciled and forgive her alleged past offense, he deliberately made a choice between her and his brother, and decided to give her np rather than suffer his brother to leave.
The question now presented is whether or not he made that choice too late, and is barred by his acts of reconciliation with his wife. The definition of condonation in its legal application to marital relations is stated by one of the text writers on that subject as follows: ‘ ‘ Condonation is the voluntary forgiveness and remission of a cause for divorce upon the condition that the offender will reform and will not be guilty of another cause for divorce. The condonation, in order to constitute a waiver of the cause for divorce, must amount to a reconciliation and a reunion of the parties. The reconciliation may be by express agreement of the parties to forgive the past and continue to live together. But ordinarily the con-donation is implied from the conduct of the injured party. One who relies upon a cause for divorce must not be guilty of inconsistent conduct. If such party has acted as if no real injury was inflicted, or has pursued a course of conduct evincing an intention to. forgive the past and not apply for a divorce, he is estopped to declare a contrary intention.” 1 Nelson on Divorce and Separation, Sec. 450. The same author in another section (452) further states the law on the subject as follows: “The conduct which amounts to condonation must be something more than mere verbal forgiveness. It must amount to a reconciliation of the parties to such .an extent as to evince an intention to forgive the offense and an acceptance of the forgiveness by the offender. The offer of the injured party to return and resume cohabitation is not such a waiver of the past as will amount to condonation. At most, such offer amounts to a waiver only on condition that a reconciliation is brought about. Such offer is not inconsistent with an intention to apply for a divorce in case the offer is declined.”
The conduct of the appellant according to his own admission contains all the elements necessary to constitute legal condonation of the alleged offense. It was vol untary and complete. It is true that-lie changed his mind and undertook to rescind his acts of forgiveness and reconciliation before the resumed relations with his wife had proceeded to the extent of actual cohabitation or sexual intercourse, but it is not essential that the relations should have proceeded to that extent in order to become complete and binding. There are two modes or forms of con-donation ; one express and the other implied, and, while there are some authorities that go to the extent of holding that an implied condonation is not completed with any act short of actual cohabitation, we find none of the authorities that hold that an express condonation need go to that extent.
There is no statute in this State on that subject, and we must, therefore, resort to the application of common law principles for the purpose of determining what does and what does not constitute an act of condonation which is binding.
We have already seen from the statements of the text writers on the subject that mere words alone are not sufficient to constitute even an express condonation unless acted upon by the parties by resuming to some extent the marital relations. In the language of the Lord Chancellor in the case of Keats v. Keats, 32 Law Times Rep. (O. S.) 321, condonation means ‘ ‘ a blotting out of the offense imputed, so as to restore the offending party to the same position which he or she occupied before the offense was committed.” The ease just cited contains an interesting discussion on the subject of what is necessary to constitute a complete condonation, and the following is stated to be the law on that subject:
“It is true that forgiveness is an act of the mind, but it can only be manifested by words or by outward acts. The acts which prove forgiveness may be so strong and unequivocal, as by taking home an offending wife and cohabiting with her, that they may conclusively establish condonation. But words, however strong, can at the highest only be regarded as imperfect forgiveness, and, unless followed up by something which amounts to a recon (filiation and of a reinstatement of the wife in the condition she was in before she transgressed, it must remain incomplete. It has been argued that nothing less than renewed sexual intercourse will be sufficient to establish condonation. It is obvious, without adducing instances to illustrate my meaning, that that in some cases may be a test wholly inapplicable.”
The few cases which apparently hold to the rule that actual intercourse is essential to a completion of the con-donation are cases where the husband or wife remained in, the house with the offending party after discovering the acts of infidelity, and in none of the cases did it occur, so far as we can discover, that the parties had separated and afterwards resumed to any extent their relations as husband and wife. In the present case it is seen that there was a complete separation, and later a complete verbal reconciliation in the presence of other parties, and this was acted upon by a return of the wife to the home of her husband pursuant to the agreement that there was to be complete forgiveness and a resumption of the marital relation. They walked a distance of three miles to get back to their home, and it was only after they had gotten there that the plaintiff changed his mind and decided to recall his act of reconciliation. We think it was too late for him to do so, for he had deliberately entered into the agreement with his, wife and permitted her to act upon that agreement by leaving the home of her parents and journeying back with him to their former home.
This conclusion is distinctly in line with our decision in the case of Shirey v. Shirey, 87 Ark. 175, where we held that the dismissal of a divorce suit pursuant to an agreement to resume the marital relation constituted a complete condonation of the alleged offense.
The decree of the chancery court is, therefore, reversed, and the cause is remanded with directions to dismiss the complaint for want of equity. | [
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SMITH, J.
The complaint in this cause alleged that on January 23,1907, the Calhoun Circuit Court made an order removing the disability of minority of four infants, all of whom were, at the time, under the age of fourteen years, for the purpose of enabling them to convey their interest in a tract of land which they had inherited from their father.
A demurrer to this complaint was sustained on the ground that the judgment of the court removing the disabilities of the minors was not subject to the collateral attack here made on it, and this appeal questions the accuracy of that decision.
The exact point was decided by this court in the case of Doles v. Hilton, 48 Ark. 305, the syllabus of which case reads as follows: “The statute which authorizes the removal of the disabilities of minors applies only to such minors as are capable of attending to their own business; and an order of the probate court removing the disabilities of a minor under the age of fourteen years is void. ’ ’
In construing the statute (section 1309, Kirby’s Di gest) under which, the order removing the disability in that case, as well as in this one, was made, Judge Battle, speaking for the court, said:
“It is obvious that the act authorizing the removal of disabilities of minors was only intended to apply to such minors as are capable of transacting their own business. ’ ’
And he further said: “It is contrary to all reason to suppose that the intention of the act in question was to authorize any court to empower a minor under fourteen to do an act requiring a higher qualification to do than an act he is presumed, under the statute, to be incompetent to perform. Construing all the statutes on the'5 subject together, and governed by the manifest intent of the act in question, we conclude that no court has or had the authority, under the act in question, to remove the disabilities of a minor under fourteen years of age.”
The necessary effect of this decision is that no testimony could have been heard or showing made, which would have authorized the court to remove the disabilities of these minors, and the action of the court in doing so was coram non judice. The proceeding is as void as if there had been no statute on the subject, because the statute has no application to minors under the age of fourteen.
The judgment of the court below sustaining the demurrer will, therefore, be reversed and the cause remanded with directions to overrule it. | [
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McCULLOCH, C. J.
Appellant was convicted of the crime of grand larceny, alleged to have been committed by stealing a steer, the property of one Yickers.
The principal contention of learned counsel for appellant is that the testimony was not sufficient to sustain the verdict — conceding that there was enough evidence to establish appellant’s guilty participation in the commission of the crime — he was indicted as principal, and that there is no proof tending to show that he stole the animal himself or was ■ present when the animal was stolen. The proof is uncontradicted that Yickers owned the steer mentioned in the indictment; that the animal was stolen from the range and was butchered in the woods a few hundred yards from appellant’s house. Witnesses introduced by the State testified that they found the butchering place with several heads of butchered animals there, and among them the head of the Yickers steer, and that they hid in a place nearby and saw appellant take the head down and carry it off and put it in a hole in the ground and cover it up, and also saw him take down the chain used in lifting the butchered animals. Afterwards appellant produced the head of the animal at the trial in the examining court, and there is no dispute about the fact that it was the head of the steer which had been stolen from Yickers. Appellant testified that the steer was butchered by Henry Schuflin, one of the tenants on his farm, and that he let Schuflin have his wagon and team to haul the meat to market. He admitted that he went down to the butchering place and took down the head and chain, and stated that he put the head in the hole and covered it up so that the dogs could not get hold of it and thus destroy its indentity. The testimony of the State’s witnesses tended to show that this occurred the next morning after the steer had been butchered in the early part of the previous night.
Appellant’s possession of the head of the recently-stolen animal, if not satisfactorily explained, was sufficient to warrant the jury in concluding that he was guilty of stealing the animal, and it was properly left to the jury to determine whether or not appellant’s explanation of the possession of the stolen property was satisfactory and reasonable and consistent with his innocence. Appellant himself produced the testimony tending to show that the animal was butchered by Schuflin alone, but the jury were not bound to accept his version of the matter and may have concluded, from the fact of his possession of the head and his suspicious conduct in removing it and and secreting it, that the belief was warranted that he had stolen the animal himself.
We are. of the opinion, therefore, that the evidence is sufficient to sustain a finding of the guilt of the defendant as a principal in the commission of the crime.
Error of the court is assigned in admitting improper testimony, but that assignment is not available for the reason that no exceptions were saved and also for the reason that the court excluded the testimony from the consideration of the jury.
It is contended that the judgment should be reversed on account of the following remark of the prosecuting attorney in his closing argument:
“Mr. Steel in his speech to you said that this man had a good reputation. Mr. Steel knows and every at* torney at this bar knows that, under the fixed rules of law, I had no right to attack this man’s character and reputation, that my hands were tied and I could not go into his past record, unless that was first put in issue by the defendant himself.”
Appellant testified in his own behalf and the prosecuting attorney might have introduced testimony attacking his reputation by way of impeachment as a witness, and the statement in the argument was, therefore, erroneous, but we fail to see any possible prejudicial effect resulting from the controversy between counsel as to the reason for not introducing proof of that character. The remarks do not bear the necessary inference that testimony could have been produced successfully attacking the reputation of appellant, and it did not amount to a statement of fact by the prosecuting attorney.
We fail to discover any prejudicial error in the record, and, the evidence being sufficient to sustain the verdict, the judgment must be affirmed, and it is so ordered. | [
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HUMPHREYS, J.
A. T. Bowden sold a confectionary and billiard hall to appellee, C. H. McCroskey. The Bulk Sales Law w.as not complied with in making the sale, and Bowden’s creditors required appellee to pay the outstanding mercantile indebtedness of said businesses. Appellee brought suit against Bowden to recover the amount he w;as required to pay on this account and recovered judgment in the common pleas court of Chicot County on the 23rd day of July, 1917, against A. T. Bowden for $656.47. In making the purchases aforesaid, appellee had executed notes to A. T. Bowden in payment of a part of the purchase price for the businesses. These notes, with other securities belonging to Bowden and his wife, were transferred by them before maturity to the Exchange Bank & Trust Company to secure certain indebtednesses that they owed the bank.
Appellant was a general creditor of A. T. Bowden prior to September 1, 1915, and on that date recovered a judgment in the common pleas court of Chicot County against appellant and issued an execution thereon which was returned nulla tona.
The Exchange Bank & Trust Company instituted suit in the Chicot Chancery Court to foreclose its mortgages and subject its collaterals to liquidate the indebtedness due it by the Bowdens. Appellant intervened in this suit, setting up its judgment of date September 1, 1915, seeking a discovery of any money, choses in action, equitable or legal interest and all other property to which the Bowdens were entitled in the hands of said bank. The proceeding followed by appellant is founded on section 3308 of Kirby’s Digest. On July 23, 1917, the court rendered a judgment in favor of the bank, subjecting the mortgaged property and collaterals to the payment of the bank’s indebtedness, but declared a lien on the equity of Bowden in all of said property in favor of appellant in so far as it was necessary to pay Bowden’s indebtedness to appellant on the judgment obtained by appellant against Bowden. Appellee was not a party to this suit, and no appeal was prosecuted therefrom. After the ren dition of that judgment and before the equity in the securities belonging to Bowden had been subjected to the payment of appellant’s judgment, appellee filed an interplea by consent of all the parties in the original suit, seeking to offset his judgment obtained in the common pleas court against the purchase money notes for the confectionary and pool businesses which Bowden had assigned to the bank as collateral security; and asking that the judgment of date July 3, 1917, be modified so as to allow his judgment as an equitable offset against the notes in question. Appellant later filed a motion to strike the intervention of appellee. The court heard the case and allowed appellee’s judgment in the sum of $656.47 as an equitable credit on the purchase money notes. The effect of this modification of the original decree was to render appellee’s judgment a paramount claim to that of appellant’s judgment on Bowden’s equity in the purchase money notes. To this appellant objected, and has prosecuted an appeal to this court.
It is insisted by appellant that it acquired a lien on Bowden’s equity in the purchase money notes paramount to appellee’s claim of offset thereto by having followed strictly the proceedings under section 3308 of Kirby’s Digest and in prosecuting its claim to final judgment rendered on the 3rd day of July, 1917. It is true, under section 3308 of Kirby’s Digest, that a judgment creditor may establish a lien upon the property of an apparently insolvent judgment debtor in the hands of a third party by instituting equitable proceedings to subject the property to the payment of his claim, which lien shall exist from the service of the summons. There is nothing, however, in this or subsequent sections that gives a judgment creditor a paramount or prior lien on said property to an existing lien or equity in favor of a third person, so the effect of proceeding under this and subsequent sections can not impair an existing equity or lien. Especially is this true when the owner of such an existing equity was not made a party to the suit and has not had an opportunity to protect his equity. A proceeding under this section can not have the effect of placing the judgment creditor in the situation of an innocent purchaser. The bank, of course, was an innocent purchaser of the purchase money notes for the confectionary and pool businesses which it acquired from Bowden before maturity and for value. This proceeding did not have the effect of subrogating appellant to the rights of the bank. It only acquired by the proceeding such equity in the notes as Bowden had. In Bowden’s hands, appellee McCroskey had the equitable right, if sued upon the notes, to counterclaim or offset his damages resulting from the enforced payment of Bowden’s indebtedness for goods purchased in the pool and confectionary businesses. Or, putting the converse proposition, appellee had a right to sue Bowden on his warranty that the goods sold were free from indebtedness and liquidate the notes to the extent of the amount recovered. The impounding of the notes by appellant amounted to a taking of them and an establishment of a lien on them subject to any original rights or equities existing in any third party concerning them. If appellant and appellee had been on a parity, appellant’s contention would necessarily prevail, because it would then have acquired the first lien by proceeding under section 3308 of Kirby’s Digest. In that event, it would have been a race between general creditors, and the diligent would have been rewarded, but they were not on a parity. Appellee had an original or inherent equity to offset his damages against the particular notes in question before they were seized by appellant. This being the case, -the holder of an original or inherent equity in the property has the prior and paramount lien.
It is said, however, that appellee was forced to pay Bowden’s indebtedness through his own fault by omitting to comply with the Bulk Sales Law. Bowden could not be heard to make such a defense, and appellant’s right acquired by a seizure of the paper can rise to no higher plane than Bowden’s rights.
No error appearing in the decree, it is affirmed. | [
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HUMPHREYS, J.
This proceeding was instituted in the Jefferson Circuit Court to vacate a default judgment rendered against appellee in favor of appellant on the 25th day of February, 1918, in a suit in forcible entry and detainer of certain real estate wherein appellant was plaintiff and appellee was defendant. Appellee alleged in the complaint to vacate the default judgment that prior to the rendition thereof he filed an answer setting up a meritorious defense with the clerk of the court which was misplaced or lost and not noted on the docket, and that through this unavoidable casualty and misfor tune lie was prevented from appearing and defending against the judgment; that the lost or misplaced answer contained a denial of all the material allegations in the original complaint for forcible entry and unlawful detainer of said real estate, and, in addition thereto, alleged that in January, 1916, appellee entered into a contract with R. M. Oats, who at the time owned said property, for the rent of said lands for a period of three years in consideration of appellee agreeing to clear and put in a state of cultivation said lands, and that in keeping with said agreement appellee entered upon said lands and performed his agreement by clearing and putting into cultivation said lands; that appellant purchased said real estate with full notice of and subject to the rights of appellee.
In apt time appellant filed his response to the complaint to set aside said judgment, in which he placed in issue all the allegations therein.
On April 26, 1918, the cause was submitted to the court upon the pleadings and affidavits filed by the respective parties which were treated as evidence, upon which the court rendered a decree setting aside the default judgment of date February 25,1918.
Proper steps were taken, and an appeal has been prosecuted to this court seeking to reverse the judgment of the court setting aside said default judgment.
The substance of the testimony offered by appellee was that, immediately upon being summoned in the forcible entry and unlawful detainer suit, he employed H. K. Toney to file an answer for him; that H. K. Toney dictated the answer to his stenographer, Miss Isabel "Woodard, in appellee’s presence, and that after the an> swer was prepared his attorney, H. K. Toney, carried it to the courthouse and filed it in the clerk’s office within the time required by law.
The substance of the evidence offered by appellant was that no answer was filed by appellee in the forcible entry and unlawful detainer case prior to the rendition of the default judgment therein.
The power to vacate or modify judgments after the expiration of the term at which judgments are rendered is conferred upon courts in this State by sections 4431-3, Kirby’s Digest, for reasons set out in the several subdivisions contained in said section 4431. The seventh subdivision of said section authorizes the court in which a judgment has been rendered to vacate it “for unavoidable casualty or misfortune preventing the party from appearing or defending. ’ ’
It is insisted by appellant that appellee did not show an unavoidable casualty or misfortune which would prevent him from defending the cause. Had an answer been present in court at the time of the rendition of the decree, no default judgment could have been rendered. The absence of an answer enabled appellant to procure the default judgment. The loss or misplacement thereof prevented appellee from defending the suit upon the issues joined. The court is of opinion that the loss thereof was a casualty or misfortune within the intent of the statute aforesaid.
But it is said by appellant that appellee utterly failed to prove that he filed an answer. We think appellant is mistaken in this assertion as the attorney for appellee testified that he dictated the answer to his stenographer and after same was prepared he at once carried it to the courthouse and filed it in the clerk’s office. It is said that filing an instrument in the clerk’s office does not necessarily mean that it was given to the clerk or one of his deputies in the office for the purpose of filing same. We think the only natural conclusion from the language used by the witness is to say that his testimony was to the effect that he placed it in the hands of the clerk or one of his deputies to file it. It is true that the clerk and all of his deputies gave quite positive testimony to the effect that no such answer was filed in the case of appellant against appellee, but this court is not called upon to pass upon the weight of this evidence. Where circuit courts are required by law to pass upon questions of fact, the findings are as conclusive on appeal as the verdicts of juries. In rendering the judgment setting aside the default judgment, the court necessarily found on conflicting evidence that appellee filed an answer in the suit for forcible entry and unlawful detainer in which the default judgment was rendered. The finding of the court is sustained by sufficient substantial evidence and is conclusive on appeal under the well established rule in this court to the effect that “where the law makes the trial judge the trier of facts in cases to which the constitutional right of jury trial does not apply, the same presumption attends his finding as when a jury is waived by the party. ’ ’ Jones v. Glidewell, 53 Ark. 161; Schuman v. Sanderson, 73 Ark. 187; Williams v. Buchanan, 86 Ark. 259; Matthews v. Clay County, 125 Ark. 136.
Again, it is contended by appellant that appellee failed to set up a meritorious defense to the cause of action. The answer denied that appellee forcibly entered and unlawfully held the land in question, but asserted the fact to be that E. M. Oats owned the land in January, 1916, and leased it to him for a period of three years in consideration of appellee agreeing to put .same into a state of cultivation and that, in pursuance of said agreement, he entered upon said land and performed his agreement by putting same in cultivation and that thereafter D. B. Niven purchased the land from E. M. Oats and that T. P. Cady purchased .same from D. B. Niven, both of whom at the time of their respective purchases had notice of the rights of appellee in the land by virtue of his lease of said lands from E. M. Oats.
These allegations constitute a meritorious defense to the cause of action for forcible entry and unlawful detainer of said lands.
No error appearing in the record, the judgment is affirmed. | [
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"WOOD, J.
Appellant was indicted, tried and convicted of the crime of seduction and duly prosecutes this .appeal. The prosecutrix testified that defendant began keeping company with her in November, 1916. At that time she was not yet seventeen years of'age. He visited her every week or two from November until May. Defendant lived at Vilorda, Faulkner County, .Arkansas. He is the only man she kept company with from November to May. Defendant began to have sexual intercourse with witness in February or March, 1917. The reason she permitted the defendant to have sexual intercourse with her was because he promised to marry her. She would not have done so had it not been for such promise. She never had sexual intercourse with any other man. Her baby was born December 26,1917, and the defendant is its father. Defendant had intercourse with witness three or four times. The first time was at Fort Logan H. Roots; that was when he promised to marry witness.
On cross-examination the prosecutrix was asked: Q. The first intercourse was committed at Fort Logan H. Roots? She replied, “On that hill.”
The testimony of the prosecutrix shows that after the first act of intercourse defendant continued to have sexual intercourse with her in February or March up to May, 1917. She was asked, “Where did the intercourse occur?” and answered, “We were coming from town.” She was asked, “Was that in North Little Rock, Pulaski County, State of Arkansas?” and answered, “Yes.” She also testified that she received a letter from defendant after the acts of sexual intercourse in which he promised to marry her. She had burned the letter.
Witness Effie Wright was about fifteen years old and a sister of the prosecutrix. Effie testified corroborating the testimony of the prosecutrix as to her associations with the defendant. She stated that they were engaged to be married; that she overheard a conversation in February or March in which defendant told the prosecutrix that he loved her better than any other girl and wanted her to be his wife. She testified that she saw the letter which, her sister received from the defendant, in which he said that he would marry her. Effie also testified that next to the last Saturday in March she had a conversation with the defendant as follows: “He asked me how I would like to be his sister-in-law, asked me how much I would take for sister.”
Albert Wright, the father of Belle, testified to the frequent associations of defendant with his daughter Belle. Witness had a good opinion of defendant. Defendant took his meals .at witness’ house. He let his daughter go with defendant. He thought defendant was going to marry her. When he discovered that his daughter was pregnant he asked her who the man was and she told him that defendant was the man. Witness had the defendant arrested.
Appellant contends that there is no evidence to corroborate the prosecutrix as to the alleged promise of marriage, and the alleged act of sexual intercourse, and that therefore there is no evidence to sustain the verdict. In Lasater v. State, 77 Ark. 468, we held that the testimony of the prosecutrix in a seduction case may be corroborated by circumstances as well as direct evidence. In that case, page 472, we quoted approvingly from the opinion in Armstrong v. People, 70 N. Y. 43, as follows: “The promise of marriage is not an agreement usually made in the presence or with the knowledge of third persons-. Hence the supporting evidence possible in most cases is the subsequent admission or declaration of the party making it; or the circumstances which usually accompany the existence of an engagement of marriage, such as exclusive attention to the female on the part of the male, the seeking and keeping her society in preference, to that of others of her own sex, and all those facts of behavior toward her which, before parties to an action were admitted as witnesses in it, were given to the jury as proper matter for their consideration on that issue.”
Under the doctrine of the above case the testimony of the prosecutrix was corroborated by both the direct evidence of her sister tending to prove the subsequent admissions and declarations of the defendant of the promise of marriage as shown by his conversation and also by Ms letter. Tbe prosecutrix was corroborated as to tbe promise of marriage and also as to tbe act of sexual intercourse by the testimony of ber sister and father tending to prove tbe circumstances which usually accompany an engagement of marriage, and tbe opportunities thus afforded for sexual intercourse.
On tbe main case several witnesses called on behalf of tbe State testified that they were acquainted with tbe general reputation of tbe prosecutrix in tbe community where she lived for chastity and morality, and that such reputation was good. Tbe appellant objected to this testimony on tbe ground that ‘ ‘ same was incompetent, irrelevant, immaterial, prejudicial, and an effort on tbe part of tbe State to bolster tbe testimony of the prosecutrix, ber reputation for chastity, morality or anything else not having been attacked or assailed.”
It was error to permit this testimony to go to tbe jury .at that juncture of tbe proceedings, because neither the chastity nor tbe veracity of tbe prosecutrix bad been questioned by tbe appellant. In tbe absence of proof to tbe contrary, tbe presumption is that prosecutrix was chaste at tbe time of tbe alleged act of sexual intercourse under promise of marriage. Therefore, tbe State was not called upon to affirmatively establish such fact by evidence to that effect before appellant bad attempted to prove that she was unchaste. Tbe majority of tbe court, however, .are of tbe opinion that tbe obvious purpose of tbe above testimony was to prove that tbe prosecutrix was chaste and that since such fact would have been presumed anyway, it was at most only harmless error to permit tbe State to prove it. Tbe admission of incompetent evidence to prove what the law would otherwise presume, is harmless. Braddock v. Wertheimer, 68 Ark. 423.
Furthermore, tbe majority have reached the conclusion that tbe language in which tbe objection was couched constituted only a general objection to tbe testimony; that in tbe form presented it was. only an objection to testimony tending to prove tbe general reputation of the prosecutrix for chastity, morality, etc., and that this was not sufficient to present the specific objection that the court erred in permitting evidence of the good character of the prosecutrix for veracity before her general character as a witness had been assailed. See section 3140, Kirby’s Digest. The majority, therefore, conclude that there was no prejudicial error in admitting the above testimony as has been shown.
The writer dissents from the above view, being of the opinion that the language used in making the objection was sufficient to call the attention of the court specifically to the fact that the State was attempting to “bolster the testimony of the prosecutrix. ’ ’ In other words, that the State was introducing evidence of the good character of the prosecuting witness before her general reputation had been impeached, which, under section 3140 of Kirby’s Digest, supra, can not be done. Furthermore, the writer is of the opinion that, even if the language only presented a general objection, it was sufficient to present the-question of the competency and relevancy of the testimony. Vaughan v. State, 58 Ark. 353-373. The statute itself, supra, renders the testimony incompetent.
The important and interesting question as to whether the United States had exclusive jurisdiction over the offense charged against the appellant is ably presented in briefs of counsel for the appellant and also for the State. But the facts as to the venue do not call for a decision on the question of jurisdiction, and we therefore pretermit a discussion of that issue until it is squarely raised by the facts and a decision becomes necessary.
Venue is an issue to be proved by a preponderance of the evidence. Douglass v. State, 91 Ark. 492. The testimony tended to prove-that the first act of sexual intercourse under promise of marriage was “on that hill,” meaning the hill upon which Fort Logan H. Boots is located, that it was in Pulaski County and the State, of Arkansas. While the prosecutrix on direct examination testified that the first act of sexual intercourse was at Fort Logan H. Boots, yet on her cross-examination, in answer to the question, “The first intercourse was committed at Fort Logan H. Roots 1 ’ ’ she answered, ‘ ‘ On that hill.” Taking the testimony of the witness as a whole, the jury were warranted in finding that the first act of sexual intercourse occurred, as already stated, on the hill on which Fort Logan H. Roots is situated in Pulaski County, in the State of Arkansas.
There was no testimony that the identical place on that hill where the first act of sexual intercourse took place was covered by buildings, walls, or that it was within any permanent inclosure belonging to the United States. Therefore, no issue as to the jurisdiction is presented and the venue is established to give the Pulaski County Circuit Court jurisdiction.
A majority is of the opinion that there is no reversible error, and the judgment is, therefore, affirmed. | [
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HUMPHREYS, J.
This is an appeal by about forty property owners and the Chicago, Rock Island & Pacific Railway Company from the circuit court of Perry County, attacking the validity of the organization and assessment of benefits on their lands in the Cypress Creek Drainage District in Conway and Perry Counties, Arkansas. The district, as organized, contains 18,000 acres of land lying in the two counties.
It is contended that the orders organizing the district were made by the circuit court when not legally in session. An examination of the complete record of the proceedings shows that all court orders for the organization of the district were made by the circuit court either at a regular or adjourned term thereof.
(1-2) It is next contended that legal notice and legal petitions for the formation of the district were not filed. Only one notice is required to be given preliminary to the organization of a district. That notice must be published by the circuit clerk .after the report of the engineer, appointed for the district, has been filed, calling upon all land owners in the district to appear before the court to show cause for or against the creation of the improvement district. The record shows that such a notice was given by the clerk in both Perry and Conway Comities by publication in the “Perry County News” of Perry County and the “Morrilton Headlight” of Conway County. Likewise, only one petition is required in order to form a drainage improvement district under Act 279, Acts 1909, as amended by Act 221, Acts 1911. This is tbe initial and preliminary petition required to be signed by three or more property owners in the district, calling upon the court to establish a drainage district to embrace their property, describing generally the region which it is intended shall be embraced within the district. The record shows that such a petition was filed on August 11, 1916. Some contention is made by appellants that the petitions, purporting to show that a majority of the property owners in number and acreage forming the district, were not marked “filed.” Such a petition was not necessary under section 2, Act 221, Acts 1911, amending section 2, Act 279, Acts 1909; but if that were necessary, the record shows that a petition was filed December 4,1916, purporting to have been signed by a majority in number .and acreage of all property owners in the district; and that said petition was considered by the circuit court in creating the district.
(3) It is again contended that the maps, profiles, estimates, etc!, required to be filed by the engineer, preliminary to the formation of the district, were not filed in the manner provided by law. The law requires that the engineer shall make a survey ascertaining the limits of the region benefited by the proposed drainage system and shall file with the circuit clerk a report showing the territory which shall be benefited by the improvement] giving a general idea of its character and expense, and making such suggestions as to the size of the drainage ditches and their location as he may deem advisable. The record shows that the preliminary report and estimate of the 'cost of the improvement, as required by section 1, Act 221, Acts 1911, amending sec. 1, Act 279, Acts 1909, was filed on October 16, 1916.
(4) It is insisted that the commissioners are disqualified on account of being land owners in the district. Section 6, Act 117, Acts 1913, amending Act 221, Acts 1911, and Act 279, Acts 1909, requires the commissioners of ,a drainage district lying in more than one county to be the owners of real property within said district. It it mandatory that the commissioners be interested in a material way in the district, so the argument that the district should be invalidated and that the assessment should be canceled because the promoters of the district and the commissioners making the assessments were interested can not avail appellants in this case. The further fact that John S. Harris, commissioner, purchased an interest in timber on lands in the district, contingent upon the organization of the district, is not sufficient to invalidate the district for fraud. The evidence is not sufficient to show that the commissioners improperly assessed benefits against the lands on account of Harris’ contingent interest in timber on a large tract of land included in the district.
(5) It is also insisted that the assessment of benefits to the property in the district was not made and filed by the commissioners and notice thereof published, as required by law. The manner of making and filing an assessment of benefits to the lands and improvements thereon, and the notice to be given thereof, is particularly set out and designated in section 7, Act 117, Acts 1913, amending section 7, Act 279, Acts 1909. These requirements were literally complied with. The assessment book was prepared, as required, subscribed by the commissioners, and filed on March 29, 1917. Notice to property owners that the assessment of benefits to be filed was published in the “Perry County News,” Perry County, and the “Morrilton Headlight” of Conway County, calling on all property owners to appear before the court on April 24, 1917, and present objections, if any, to the assessments. Appellants are therefore in error in this contention.
(6) It is insisted by appellants that no benefits will accrue to their property by reason of the improvements and that the benefits assessed are excessive. The chief reason urged is that their lands are high, and not subject to overflow and distant from the canal and laterals.
This court has committed itself to the doctrine that, “The amount of benefit which an improvement will confer upon particular land, indeed whether it is a benefit at all, is a matter of forecast and estimate.” Louisville & Nashville Ry. Co. v. Barber Asphalt Paving Co., 197 U. S. 430.
In adopting this doctrine, this court said: “The assessment of future benefits is largely a matter of estimate and to some extent speculative. We must depend largely upon the opinions of men of sound judgment and reasonable information on the subject to determine what the future benefits will probably be. If it were necessary to find an exact' standard, a measure of benefits in advance would be impossible. That view of the matter would necessarily lead to the conclusion that benefits must be enjoyed before there can be an assessment to pay for the improvement, which would be a contradiction in itself.” St. Louis & S. F. Rd. Co. v. Ft. Smith & Van Buren Bridge Dist., 113 Ark. 493. This court has also said that “a tract within the district may be above overflow without the levee and, yet, in various ways, greatly benefited by the levee.” Carson v. St. Francis Levee Dist., 59 Ark. 514; Memphis Land & Timber Co. v. St. Francis Levee District, 64 Ark. 258; Butler v. Board of Directors of Fourche Drainage District, 99 Ark. 100.
A number of the appellants testified that their lands were above overflow, either from rains or from backwater; that no lateral of the system would come in contact with their lands; that their lands needed no drainage ; that they would receive no health benefits; and that their lands would not be enhanced in value by reason of the improvement.
W. J. Parkes, engineer for the district, in substance, testified that every tract of land embraced in the district would receive a benefit by reason of the construction of the improvement on account of increased value of the land and better health conditions. Dr. M. E. Howard, health officer of Perry County and a physician of forty years’ experience, who was familiar with the topography of the country included in the district, testified that, ordinarily, the country north of the ditch was a, flat, level country, interspersed with swamps and lakes, and that the construction of the drainage would be .a wonderful benefit to the health of the community, as it would eradicate the mosquito pest completely. T. S. Carl and T. E. Holmes, owners of upland in the northern part of the district, similarly situated to the lands of appellants, gave testimony to the effect that although their lands received no’ direct physical benefit, the improvement would increase them materially in value. H. W. Birch and John 8. Harris, likewise owners of upland north of the ditch, near the lands of appellants, testified that all the lands in the district would be materially increased in value on account of the improvement. A large portion of the lands belonging to B. G. White, Mrs. M. L. White, G. O. Breeden, Mrs. M. J. Breeden, L. T. Oates and Mrs. A. J. Patterson, are located near the system of canals and it is quite obvious that much of their lands will be drained and protected' from overflow. It is apparent that a large part of the lands of each of these appellants will be materially benefited. There is evidence in the record tending to show that the railroad property of the Chicago, Rock Island & Pacific Railway Company will receive little or no direct benefit and no indirect benefit, but John S. Harris and W. J. Parkes testified that during high-water periods water stood against the dump of the railroad at many places, and John S. Harris further testified’ that the railroad would receive the same benefit that the property in the town of-Perry would receive.
The drainage improvement district law specifically authorizes the assessment of benefits against railroad property within improvement districts, and this court has said that “benefits may be assessed against the property of a railroad company by reason of the construction of a bridge by a bridge improvement district, and although the result of the construction of the bridge is to create competition for the railroad company. ” St. Louis & S. F. Rd. Co. v. Bridge Dist, supra.
It was also .announced in the case just cited that in assessing benefits to accrue to railroad property it was proper to consider the probable increase in traffic due to estimated growth in population. It was in evidence that the construction of this system of canals would tend to increase the population because it would make available for cultivation large bodies of lands. The evidence strongly tended to show that the improvement would greatly improve health conditions which would benefit all the property in the district, including railroad property.
The circuit court reviewed the assessments placed upon the property by the commissioners or assessors. He had before him numerous witnesses who expressed their opinions with reference to whether the lands were benefited and the extent thereof. In addition to hearing the evidence, he made a personal inspection of the district in company with one of the commissioners and one of the appellants in this cause. After a full consideration of the case, he made many reductions in the assessments, and reduced the assessment of the railroad company from $10,000 to $4,500. The testimony heard by him was conflicting. After a full examination of the record, we think that all the property in the district will receive some benefit and that the amount of benefits adjudged against each tract of land is a fair measure of the benefits that will accrue to it. It is not necessary, however, for us to do more than find that there is sufficient legal evidence to sustain the finding of the court. It is not the province of this court on appeal to pass upon the weight of the evidence. "We think there is sufficient legal evidence in the case to support the finding of the court.
(7) It is said that if any benefits will accrue to the lands they have been unequally apportioned to the respective tracts. In other words, that there is an inequality in the assessment of benefits. John S. Harris testified that in making the assessment he used a zone map, prepared by W. J. Parkes, and that from the map, together with his personal knowledge and inspection of the land, the assessment was made. Upon examination, we find that this zone map disclosed the location of each tract of land with reference to the proposed system of canals, and also shows, in a certain degree, the topography of the country, in that the cypress brakes and streams are located definitely. The character of the lands and their proximity to the canals must necessarily have aided the commissioners in determining the relative benefits which would accrue to the various tracts of land. In fact, ÍW. J. Parkes testified that the maps showed the relative benefits that the lands would receive — not in dollars and cents — but with relation of the tracts to each other. The commissioners assessed benefits accruing to swamp lands, which will be reclaimed by the system, at $15 per acre and ranging as the benefits decreased downward to as low as $1.50 per acre on the high lands most distant from the canals. Again, John S. Harris testified that in order to properly apportion and equalize the assessment of benefits they took into consideration every element of benefit that would accrue to the different character of lands; for example, that they estimated the lands in the town of Perry would receive $10,000 in total benefits; that the lands in the country, aside from the railroad lands, would receive $72,800 in total benefits, and that the lands of the railroads would receive $10,000 in total benefits. It seems to us that every effort was made by the commissioners to fairly and justly apportion and equalize the assessment of benefits. The assessment of benefits apportioned by the commissioners to appellants’ lands, except as to the lands immediately in swamps and in close proximity to the main canals, were reduced by the circuit court materially. The court also reduced the railroad assessment to about $500 a mile. The same rule must be applied to the finding of the court upon this issue as in the first issue discussed. We think there is sufficient legal evidence in the record to sustain the apportionment of benefits.
(8) Lastly, it is contended that the basis of the assessment is illegal because an acreage basis was applied to country property, a valuation basis to town property and a unit basis to the railroad property. As we understand the evidence in this case, the assessors adopted a uniform basis for making the assessment on all the lands. They uniformly used a benefit basis. For example, they ascertained that the total benefit to accrue to the lands in the town of Perry would be $10,000, after taking into consideration every element going to make up the total benefit. In order to apportion equitably the total benefit assessment on the town lands to the several tracts therein, a valuation basis was adopted. Likewise, they ascertained that the total benefit to accrue to the lands in the country would be $72,800, and, in order to equitably, apportion the benefit assessment to the several tracts lying in the country, they adopted as a basis of apportionment .the relative benefit received by each forty-acre tract. The ordinary description of railroad property is neither in lots nor acreage. The railroad property in question all belonged to one company. .A total assessment of the entire benefit to the whole property was entirely feasible and practical and an apportionment of the benefits on any basis was unnecessary.
The judgment of the circuit court is, therefore, affirmed. | [
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HART, J.
William Johnson was indicted, tried and convicted of the crime of assault with intent to murder Hugh Dixon, his punishment being fixed by the jury at the term of one year in the State penitentiary. From the judgment of conviction he has duly prosecuted an -appeal to this court.
It is first earnestly insisted by counsel for the defendant that the evidence is not sufficient to warrant the verdict; but in this connection we can not agree with counsel.
According to the testimony of the prosecuting witness he was shot at his home in Hempstead County, Arkansas, about dark on the 28th day of February, 1918. At the time he was sitting by the fire in his house with his children and had just told one of them to shut the door when a gun was fired. It sounded like it was in the corner of the yard in front of the door, a short distance from where he was sitting. Four buckshot fired from the gun came through the open door and struck him in the back, seriously wounding him. The door was open at the time the shot was fired and the prosecuting witness had not heard any noise prior to the shooting.
According to the testimony of Alec White, he was not related to either Hugh Dixon or William Johnson. A few days after the shooting, Johnson admitted to him that he had shot Hugh Dixon. He said that he was standing in the corner of the yard when Dixon came in the hack way and went into the house and sat with his back to the front door which was open. The defendant then fired his gun and shot Dixon in the back. He further stated to White that he was sorry for what he had done and that what he had been told about Hugh Dixon before the shooting was not the truth.
The defendant testified for himself and denied that he shot the prosecuting witness. He testified that he was at home playing cards with his three brothers at the time Dixon says he was shot. His testimony was corroborated by that of his three brothers. His parents also testified that he ate supper at their house and went home right after supper. It was also proved by the defendant that Alec White had stated that if it took swearing to send the defendant to the penitentiary that he was going to do it. In rebuttal it was proved by the State that, after the defendant had been arrested, he asked a second cousin of the prosecuting witness to testify that he was at the defendant’s house the night of the shooting.
Thus it will be seen that the testimony for the State and for the defendant is in direct and irreconcilable conflict. The testimony for the State, however, if believed by the jury, was sufficient to warrant the conviction. It was proved that some one shot the prosecuting witness in the back and that the defendant in a few days thereafter admitted that he fired the shot. .This testimony was sufficient to warrant the conviction.
It is true that we have held many times under section 2385 of Kirby’s Digest that a confession of a defendant, unless made in open court, will not warrant a conviction unless accompanied with other proof that such offense was committed. The defendant confessed to Alec White that he had shot the prosecuting witness on the night in question. It was proved by the .prosecuting witness that some one shot him on that night. Thus it will be seen that the requirements of the statute were fully met by the State in' this case.
The court instructed the jury that the crime of aggravated assault and simple assault were included in the indictment, and also instructed the jury on the law governing these offenses. It is insisted by counsel for the appellant that under the testimony the defendant was guilty of an assault with intent to kill or nothing, and that the court erred in instructing the jury on the lesser offense. We need not decide this question for the reason that, even if the court erred in giving the instructions complained of, it is manifest that they resulted in no harm to the defendant. The jury found him guilty of an assault with intent to kill, and this conclusively shows that the jury Was not influenced by the instructions on the lesser offenses. Hence it is certain that the same verdict would have been rendered by the jury if the court had not instructed on the lesser offenses. Jones v. State, 102 Ark. 195.
It is next insisted that the judgment should be reversed because the court allowed the prosecuting attorney in his closing argument to use the following language :
“He says if William Johnson told Alec White or confessed to him, that he had shot Hugh Dixon, he ought to be sent to the lunatic asylum. Why, gentlemen, if you will allow me to state it, men have come before this court, not last year, not last month or last week, but this very week, and without any testimony against them, have confessed their crimes and-”
The record shows that the language of the prosecuting attorney was uttered in response to a statement which had been made by counsel for the defendant in the course of his argument to the jury which is as follows:
“A man who would commit a crime and then confess it ought to he in a lunatic asylum. I never heard of a case like that in my life and the prosecuting attorney never heard of one.”
Hence it will he seen that the language of the prosecuting attorney was used by him in response to the statement made by counsel for the defendant and was, if error at all, invited error. Rhea v. State, 104 Ark. 162. Besides this the remarks were not calculated to influence a jury of sensible men to disregard the oath they had taken to try the case according to law and the evidence. The remarks were more in the nature of an expression of an opinion by the prosecuting attorney as to the circumstances under which defendants would confess the crimes with which they were charged. Blackshare v. State, 94 Ark. 548, and Cravens v. State, 95 Ark. 321.
We find no prejudicial error in the record, and the judgment will be affirmed. | [
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McCULLOCH, C. J.
The General Assembly of 1895 enacted a statute detaching the territory constituting Blue Cane township from Greene County and attaching the same to Clay County as a part thereof, the area being properly described by metes and bounds in the statute, which provided also that the township officers should continue in office until their successors were elected and qualified, and that Clay County should be liable to Greene County “for the pro rata amount of the indebtedness of said Greene County existing at the time of the passage of this act equal in proportion to the amount of taxable property of the territory detached.” Acts 1895, p. 244.
The present suit, which is one instituted in the chancery court of Clay County on behalf of Greene County against Clay County and its acting officers, challenges the constitutionality of the act transferring the territory in question from one county to another on the ground that it leaves Greene County with less than 600 square miles of territory, which is prohibited by sec. 1 of Art. NTTT of the constitution of 1874 providing that “no county now established shall be reduced to an area of less than six hundred square miles nor to less than five thousand inhabitants ; nor shall any new county be established with less than six hundred square miles and five thousand inhabitants. ’ ’
At the hearing of the cause testimony was introduced tending to show the actual number of square miles left in Greene County exclusive of the detached township, but the defendants expressly reserved the right to object to the consideration of such testimony on the ground that the statute is conclusive on the question of the proper exercise of legislative power, and that such testimony was not admissible. The chancellor rendered a decree dismissing the complaint, and plaintiffs have appealed.
. The question is squarely presented whether or not a statute which reduced the area of a county by a change in the boundary lines should be .declared void by the courts upon proof aliunde that the attempted change of boundaries reduces the area of the county to less than 600 square miles.
There are two views of the question: One that when the constitutionality of such a statute is challenged it becomes a judicial question for the courts to determine, from legal evidence adduced, whether or not the facts exist upon which the power of the Legislature to act is based; and the other view is that the determination of the facts upon which the power of the Legislature to enact the statute exists is a legislative question, and that the courts must respect that determination unless the statute is void on its face.
The authorities bearing directly on the question are not as numerous as might be expected and they are not in harmony. One of the cases which holds to the first view stated above is Zimmerman v. Brooks, 118 Ky. 85, 80 S. W. 443, where the subject is thoroughly discussed, and the authorities reviewed, and the court reached the conclusion that it is a judicial question “for the courts to determine whether the General Assembly, in creating a new county, has violated constitutional section 63, providing that no county shall be created by the General Assembly which will reduce the county or counties, or either of them, from which it shall be taken, to less area than 400 square miles, nor shall any county be formed of less area.”
Another leading case on the subject which reached the opposite conclusion is Lusher v. Scites, 4 W. Va. 11, where the authorities are also discussed at length and the court announced the following rule with respect to the conclusiveness of the exercise of legislative power:
“To exercise the power thus conferred the Legislature must inform itself of the existence of the facts prerequisite to enable it to act on the subject. How it shall do so, and on what evidence, the Legislature alone must determine; and when so determined, it must conclude fur • ther inquiry by all other departments of the government. And the final action terminating in an act of legislation in due form, must of necessity presuppose and determine all the facts prerequisite to the enactment.”
"We must, however, regard the question as settled by the decision of this court in the case of State v. Dorsey County, 28 Ark. 378, which approved the doctrine of the West Virginia case cited above, and announced the rule that “when the constitutionality of an act of the Legislature creating a new county is questioned because its area is less than the constitutional requirement, or that some county or counties out of which it has been organized has been reduced below six hundred square miles, to determine this fact, the courts can not look beyond the act itself, or some other official record of like grade and character, or official survey or maps of which they are bound to take judicial notice. ’ ’
This was but another way of saying that a legislative determination of any disputed fact is conclusive upon the courts in any inquiry on that subject unless the act shows on its face that the facts necessary to call the power into exercise do not exist, for the statute must be read and considered by the courts in the light of facts of which they have judicial knowledge, and when it is thus disclosed that the essential facts do not exist then the courts must declare the statute void. An appropriate example of this rule would be that where the act itself discloses the exterior boundaries of the county by courses and distances in such a way that the extent of the area is. a mere matter of mathematical calculation, then the statute would be void on its face if the extent of the area thus ascertained is less than the requirements of the constitution.
This case then brings us to the question whether there are, facts of which we take judicial notice in connection with the boundaries of Greene County as set forth in the statute originally creating it and the several statutes changing those boundaries, which show that the transfer of territory in this instance reduced the area of Greene County to less than 600 square miles, and if it is thus seen that it does reduce the area of the county to that extent it is our duty to declare the act unconstitutional.
It is settled by our decisions that the courts may take judicial notice of the plats of public surveys and of the general system of government surveys with base lines, meridians and ranges, and the relative positions of the sections in the township, and also the principal geographical features of the State and general location and course of rivers. State v. Dorsey County, supra; Bittle v. Stuart, 34 Ark. 224; Little v. Williams, 88 Ark. 37; Stephens v. Stephens, 108 Ark. 53; Beck v. Anderson-Tully Co., 113 Ark. 316; McCall v. North Pine Bluff Realty Co., 125 Ark. 553.
We take notice of the plats themselves, but not of the condition of the land disclosed on the plats nor the extent of the indicated area except what the plats themselves show. In other words, we can not take knowledge of the extent of any given area. McCall v. North Pine Bluff Realty Co., supra.
Greene County was created under the territorial government by a statute approved November 5, 1833, and the territory comprising the county was described as “ail that portion of the county of Lawrence, lying east of a line beginning where the southern boundary line of said county of Lawrence crosses the River' Cache, thence up the middle of the main channel of said Cache, to the place known as the three forks of Cache, thence a dne north course till it intersects the constitutional line dividing the State of Missouri from the Territory of Arkansas.” Acts of 1833, p. 35.
A portion of the original territory of the county was detached in the creation of Craighead County by the act of February 19, 1859, and again by the act creating Clay County in the year 1873. The St. Francis River, where it forms the boundary line between Missouri and Arkansas, is the eastern boundary line of Greene County, and it is conceded to be a fact that the area between the meandered line of St. Francis River and the middle thread of the stream has never been ascertained by any official survey up to the time of the passage of this statute. It is also conceded that there were large bodies of unsurveyed lands in the county at the time this statute was passed. We must, however, determine the validity of the statute as of the time it was enacted, and any official survey made since that time could not be determinative of the validity of the statute. It is easily seen that the ascertainment of the extent of the area constituting Greene County is not a mere matter of mathematical computation based either upon the exterior boundaries described in the statute fixing them nor of the plats which we notice judicially. In short, it was, when the statute was passed, merely a question of fact to determine the extent of this area to which the county was to be reduced and the only question we have here remaining is whether that question of fact should be inquired into by the courts for the purpose of upholding or overturning the statute.
That question is, we think, clearly settled by the decision of this court in the Dorsey County case, supra, and a majority of the court are of the opinion that the conclusion there reached is correct in principle, for where a power is committed to the Legislature to exercise under a given state of facts it is necessarily implied that the Legislature must first ascertain the existence of those facts, and that its determination .is conclusive upon the courts. Any other rule would lead to the utmost confusion in the efforts of the courts to review legislative action upon the ascertainment of the existence of facts which may or may not appear to be conclusive. The only sound rule is, we think, to say that when there is a question of fact to be ascertained outside of those things which both courts and lawmakers must take cognizance of, the courts can not inquire into those facts for the purpose of overturning legislative action.
It follows from what we have said' that the chancery court was correct in refusing to declare the statute void.
Decree affirmed.
WOOD and HART, JJ., dissent. | [
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HART, J.,
(after stating the facts). The law of the case is settled by the opinion in Welch v. Welch, 132 Ark. 227, 200 S. W. 139, in which most of our earlier decisions on the question are cited. In that cáse we held that equity will reform a written instrument where there is a mutual mistake or where there has been a mistake of one party accompanied by fraud or other inequitable conduct of the other party. We also held that parol evidence is admissible in a suit to reform an instrument in cases like this but that the evidence to warrant reformation must be clear, unequivocal and convincing. Tested by these well known principles of law, we are of the opinion that the decree should not be reversed. •
It is true a greater number of witnesses testified that Collier pointed out the boundary lines of the wagon yard saying that they extended from street to street and that this would include the little triangular strip of ground in controversy. They also stated that the wagon yard could not be successfully operated without this strip because a wagon could not be turned around in it. It was shown, however, that the wagon yard was 75 feet wide and 150 feet long and it is fairly inferable that wagons could be turned around in a yard of this size. Be sides that, three witnesses, including the defendant, testifie that they had operated the wagon yard without the triangular strip and that wagons had been turned around in it. Two of these witnesses testified that one of them told the plaintiff, before he purchased the wagon yard, that the little triangular strip in controversy was not a part of the wagon yard and that .’Collier only had a lease on it. Collier furnished Cain an abstract of title to the property sold him and this showed the property to be 75 feet wide and 150 feet long. The abstract itself conveyed to the plaintiff notice that the strip of ground was in the form of a rectangle and excluded the idea that the small triangular strip was a part of it. Moreover, it was not likely that the plaintiff would have agreed to give a warranty deed to the strip of ground to which he only had a lease. When all the testimony in the case is read and considered together, it can not be said that the plaintiff has proved his case by testimony of such a clear, unequivocal and convincing character as to justify a reformation of. the deed, and, especially, when to do so would require us to reverse the findings of fact on that issue made by the chancellor.
The decree will, therefore, be affirmed. | [
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WOOD, J.,
(after stating the facts). The orders of the court eliminating the insurance company from the case and requiring the appellants to he made parties and the interplea filed hy appellants narrowed the issues to, and the cause progressed as if it were, a suit hy appellants against the appellee for fees for services as attorneys.
Appellants contend that under their contract with appellee they were authorized to institute suit against the insurance companies, which they did, and that inasmuch as the appellee effected a settlement of these suits for a less amount than the sum sued for without the consent and over the protest of appellants, that they were entitled to the same fee that they would have recovered had the suits progressed to a successful termination in favor of the appellee for the full amount of his demand as made hy those suits.
A correct decision of this issue involves a construction of the contract. The contract contemplated that appellants should attend to the matter of making the settlement of the controversy between the appellee and the insurance companies, and for these services the appellants were to he paid the sum of $100 at all events, whether the settlements were had with or without suit. But in the event of a suit appellants were to receive a contingent fee, the amount thereof being dependent upon a recovery in favor of the appellee in a greater sum than that the insurance companies had offered to pay. If appellee did not recover by the suits more than the insurance companies had offered to pay then the appellants were to receive the sum of only $100 for their services in bringing suits and the appellee was to pay the costs.
• Now, giving appellants’ evidence the strongest probative value in favor of the appellants, it tends to prove that they were authorized by the appellee to institute the suits against the insurance companies for- $7,000, which they did. That after these suits were instituted appellee without appellants’ consent settled the same.for the sum of $5,000. Assuming these facts to be true, the question of law, therefore, is: “Were appellants entitled to recover a greater sum than $100 as attorney’s fee and the costs, which they paid, in connecetion with the suits ? ’ ’
In Davis v. Webber, 66 Ark. 190, we held that “A stipulation, in a contract for an attorney’s fee for prosecuting a suit, that the client shall not settle the suit without the attorney’s consent is void as against public policy.” See, in addition to the authorities there cited, 2nd Page on Contracts, see. 775, and the cases in the note.
Under our statutes an attorney has a lien for his fee which can not be defeated by any settlement of the parties litigant, before or after final judgment or final order. But an attorney has no right to compel his client to. continue litigation and the- client may dismiss or settle the causé of action without consulting his attorney. St. L., I. M. & S. Ry. Co. v. Blaylock, 117 Ark. 507; St. L., I. M. & S. Ry. Co. v. Kirtley & Gulley, 120 Ark. 389.
The contract between appellants and the appellee must be read in the light of the law and construed as though it contained a provision permitting the appellee to settle the suits at any time without consulting his attorneys, the appellants. The appellants, therefore, must be held to have contemplated, when they entered into the contract, that after the suits were instituted the appellee might settle the same and for a less sum than sued for and for a sum no greater than that which the insurance companies had offered to pay. Appellants must be held to have known that if the appellee did thus settle the amount which he received in the settlement would represent the amount recovered by virtue of the suits the same as if they had been prosecuted to a final judgment in that sum.
It follows that, since appellee recovered from the insurance companies less than the amount demanded by his suits, and less than the amount that the insurance companies offered to pay, the companies would not have been liable for attorneys’ fees had the suits been prosecuted a final judgment. Pacific Mutual Life Ins. Co. v. Carter, 92 Ark. 378.
Therefore, under the express terms of the contract, appellants could not recover of the appellee more than the sum of $100 and the costs they had paid for him. The appellants were entitled to a judgment against the appellee for that sum and to have a lien declared on the funds in their hands for its payment. Railway v. Blaylock, supra; Railway v. Kirtley & Gulley, supra.
Appellants contend that the issues raised by the pleadings and the proof in this case have already been determined in their favor by the opinion of this court in the case of Davies & Davies v. Patterson, 132 Ark. 484. Appellants misapprehend the effect of the decision in that case. While the parties were the same and the same subject matter was brought under review, yet the issue in that case was entirely different from the case at bar. In that case Patterson filed a motion for a summary judgment against Davies & Davies asking that they be required to pay over $678, the funds in their hands, which he alleged they had collected. It appears that the above sum was collected on a policy of insurance under the-same contract of employment as is in this suit.
In that case Davies & Davies in their response to the motion for summary judgment set up the contract and alleged substantially the .same facts in response to the motion as they have alleged here in support of their contention, that they are entitled to a judgment for the full amount of the fees claimed by them.
That case was disposed of as if on demurrer to the response. In that case the opinion was concluded in the following language: ‘ ‘ The answer herein stated facts which, if true, were sufficient to constitute a defense to the motion for a summary judgment. In all such cases the court should deny the motion and treat the proceedings as an ordinary action at law and transfer the same to the proper docket and allow it to take its regular course in such proceedings.” We further said in the course of the opinion: “If the facts set forth in the answer of the defendants are true, they had a just and meritorious defense.”
Treating the.facts set up in response to the motion as true, we held that the court had no jurisdiction to render judgment against the attorneys on summary proceedings. But an action by clients under a special statute on summary motion to have attorneys pay over moneys collected by them is an entirely different proceeding and presents a wholly different issue from that of an action instituted by clients against their attorneys for money had and received by the attorneys in the regular course of the common law to recover fees for services rendered by them. Although the summary motion and the action at law may be between the same parties and concerning the same subject matter, it does not follow that facts which would constitute a good defense to summary motion to have attorneys pay over the moneys collected by them and which would defeat the jurisdiction of the court to render judgment on such motion, would also constitute a cause of action' in favor of the attorneys for fees for services rendered.
It appears from the undisputed evidence in this cause that the appellants have collected and now have in their hands the sum of $678, funds belonging to the appellee. As this sum exceeds the amount of.the fee and costs for which appellants were entitled to judgment, as above indicated, there was no prejudicial error in directing a verdict and rendering judgment herein in appellee’s favor.
Judgment affirmed.
HART and HUMPHREYS, JJ., dissenting. | [
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HART, J.,
(after stating the facts). The record shows that the railroad runs east and west at the place where the public road crosses the railroad and that the station is west of the crossing. The order of the county court establishing the road concludes the description of the road as follows:
‘ ‘ Thence north about 300 yards to the north side of the right of way of the M. & N. A. Railroad; thence in a westerly direction to the station of the M. & N. A. Railroad. ’ ’ The record shows that the first clause carried the public road across the railroad. It also shows that the flag station of Capps is a short distance west of the crossing. At the time the county court made the order approving the report of the viewers and establishing the public road passen gers were received upon and discharged from the trains on the south side of the railroad at Capps. Hence it is insisted that the order of the county court established the road on the south side of the railroad from the crossing to the station. It is true that the court in St. Louis & San Francisco Ry. Co. v. Neal, 66 Ark. 543, said that a railroad station is a place where passengers are received upon and discharged from railroad trains; but the court was speaking with reference to our statute requiring local freight trains to carry passengers from and to all its stations. In its broad sense and in its common signification, a station is a place at which both freight and passengers are received for transportation or are delivered after transportation and includes a flag station. Inasmuch as the first clause of that part of the order quoted carried the public road across the railroad to the north side of the right of way, we think the last clause of the description meant to locate the road on the land north of and adjacent to the right of way of the railroad from the crossing to the station, and that the word station means the place where freight is loaded upon and unloaded from the cars. This point was as much a part of the station as the point on the south side where passengers were received and discharged. Otherwise we must hold that the court intended the road to recross the railroad in order to construct the public road on the south side thereof; for as we have already seen the first clause takes the public road across the railroad to the north side of the right of way. Therefore, we think that the last clause means in a westerly direction from the north side of the right of way at the crossing to the place on the north side of the railroad where freight was received and delivered.
It follows that the court erred in granting the in-, junction. Therefore, the decree will be reversed and the cause remanded with directions to the chancery court to dismiss the complaint of the plaintiff for want of equity. | [
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SMITH, J.
The county court of Boone County made an order establishing a road through the lands of appellant. He filed a remonstrance in the county court to the opening of the road on the ground that it would not be of .sufficient importance to warrant the county in making the necessary expenditure of money to build and maintain the road. An .appeal was prosecuted to the circuit court from the order opening the road and assessing the damages, and there the petitioners for the road moved the court to dismiss the appeal insofar as it applied to the order of the county court opening the road. This motion was sustained, and this appeal has been prosecuted to review that .order. The proceeding in this case was had under .section 1 of Act 422 of the Public Acts of 1911, page 365.
It is first insisted that the appeal was properly dismissed because appellant was not a party .aggrieved within the meaning of the law. But that contention can not be sustained. Appellant made himself a party to the record in the county court and he was, therefore, entitled to appeal from an adverse decision. Sloan v. Lawrence County, 134 Ark. 121.
As a citizen and taxpayer he had the right to be made a party to the proceeding in the county court. Lee County v. Robertson, 66 Ark. 83, 87; Casey v. Independence County, 109 Ark. 11, 17; Nemier v. Bramlett, 103 Ark. 209; School Dist. No. 44 v. Rural Special School Dist. No. 10, 128 Ark. 383; Ward v. Wilson, 127 Ark. 266; Rust v. Kocourek, 130 Ark. 39.
Moreover, he had the special interest in this litigation that the land taken would revert to him if the order of the county court establishing the road was set aside. The decision of this court in the case of Brown v. Frenken, 87 Ark. 160, turned upon the right of the appellant to appeal, and in defining party aggrieved the court there said:
“ ‘A party aggrieved is one whose pecuniary interest is directly affected by the decree or one whose right of property may be established or divested by the decree. ’ Wiggins v. Sweet, 6 Met. 197. The party aggrieved is 'the person who would have had the property if the judgment alleged to be erroneous had not been rendered. Adams v. Woods, 8 Cal. 306; Veazie Bank v. Young, 53 Maine 560; Betts v. Shotton, 27 Wis. 667; Case of Koch’s Estate, 4 Rawle (Pa.) 267; Jenkins v. International Bank, 97 Ill. 568.”
It is insisted, however, that the section under which this proceeding wqs had provides only for an appeal from the order of the court assessing the damages and makes no provision for an appeal from the order of the court establishing the road. Such appears to be the fact. But appellant is not thus deprived of his right of appeal. A .similar contention was made in the case of Huddleston v. Coffman, 90 Ark. 219. That was an appeal from an order of the county court fixing the fee of an attorney who had represented petitioners in the establishment of a drainage district. It was said that section 1428 of Kirby’s Digest, which was a part of the drainage act under which that proceeding was had, specifically enumerated the matters from which an appeal could be taken from the county court to the circuit court, and omitted to name, among the matters from which an appeal might be prosecuted, the allowance of attorney’s fees. But, in disposing of that question, the court said that section 14, article 7, of the Constitution provides that circuit courts shall exercise appellate jurisdiction over county courts and other designated courts and that a right of appeal from the order of the county court in question existed and “that right not having been conferred in the matter of allowing attorney’s fees by the Drainage Act, it could be exercised under the general acts governing appeals from county courts.” So the right of appeal existed here and should have been permitted under section 1487 of Kirby’s Digest.
It is pointed out, however, that even though the right of appeal did exist under this section of the statute the requirements of that statute were not complied with, in that no affidavit for appeal was made. This point appears to be well taken, and the .appeal from the county court was, therefore, properly dismissed, and the judgment of the circuit court to that effect will accordingly be affirmed. | [
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Tom Glaze, Judge.
This workers’ compensation case presents us with four important issues: (1) whether appellant controverted appellee’s (claimant’s) request for rehabilitation as provided for under Ark. Stat. Ann. § 81-1310 (f) (Supp. 1979); (2) whether appellant controverted appel-lee’s entitlement to permanent partial disability benefits; (3) whether appellee’s healing period continues and he is entitled to temporary total disability; and (4) whether appellee was excused from filing a petition for a change of physician pursuant to Ark. Stat. Ann. § 81-1311 (Supp. 1979), thereby permitting the Commission to require appellant to pay the medical bills of a second physician. These issues arose out of appellee’s compensable injury which occurred on October 31,1979. Dr. H. Elvin Shuffield treated appellee, rated him as having 10% impairment to the body as a whole and released him to resume regular employment effective April 5, 1980. Appellee did not return to work, claiming he still had back problems, and the sequence of events that followed gave rise to the issues under consideration in this appeal.
First, we consider the Commission's finding that the appellant controverted vocational rehabilitation benefits. Its decision was based largely on the following letter dated May 13, 1980, from the appellant to appellee’s attorney:
It is our position at this time that additional medical treatment and/or rehabilitation is not necessary and we are unwilling to pay for same.
Appellant wrote this letter in response to a May 1 letter from appellee’s attorney to the effect that appellee had an appointment with Roy Murtishaw, a clinical psychologist, for an evaluation and rehabilitation program. Apparently, the parties did not discuss the rehabilitation again until appellee broached the subject at a hearing before an Administrative Law Judge on September 17, 1980. At this hearing, the rehabilitation question was discussed extensively. In support of his claim, appellee introduced a report by Dr. Harold Chakales dated July 30, 1980, that reflected Chakales believed appellee should be a candidate for rehabilitation. Appellant still denied the need for rehabilitation and expressed its desire to obtain a report on the subject from Little Rock psychiatrist, Dr. Henry Good. At this same hearing, appellant also claimed that a May 29, 1980, report by Murtishaw, appellee’s psychologist, indicated appellee was “an unlikely candidate for vocational rehabilitation.” Our review of Murdshaw’s report in no way bears out this claim. The report reflects no mention of rehabilitation but merely relates Murdshaw’s evaluation of appellee’s psycho-physiological difficulties.
Rehabilitation was again mentioned at a second hearing before the Administrative Law Judge on December 10, 1980. By this, time, Murtishaw had reported that he had recommended appellee be evaluated for rehabilitation and that he had referred him on July 28, 1980, to the Arkansas Rehabilitation Service for such evaluation. No evaluation report or proposed rehabilitation program had been completed by the December 10 hearing date. For this reason, appellant stated it was unable to express any view on rehabilitation since no plan had been proposed and no testing had been conducted.
We believe the evidence supports the Commission’s finding that appellant controverted vocational rehabilitation benefits. Appellant, by its letter of May 13, took the inflexible view that rehabilitation was unnecessary. When this letter was written, we agree that nothing had been shown to prove appellee’s need for rehabilitation except that he desired it and had the required permanent disability to be eligible. Subsequent to May 13, however, appellant received the Chakales and Murtishaw reports which recommended a rehabilitation evaluation. Even so, appellant did not recant its view that rehabilitation was unnecessary and it held this position until the Commission decided the rehabilitation issue on January 25, 1982. During this entire period, appellant not only required the appellee to show that he needed an evaluation, but it also placed the entire responsibility on him to present a proposed program of rehabilitation.
Because of the rigid position the appellant took in May, 1980, appellee was required to seek reports from Chakales and Murtishaw merely to show he needed rehabilitation. At this point, it is noteworthy to mention that appellee’s need for rehabilitation was further verified by appellant’s own psychiatric report dated March 23, 1981.
Appellant complained at the September and December, 1980, hearings that appellee had submitted neither an evaluation report nor a program. As late as the December 10 hearing, appellant continued to state that it was unable to express any view on rehabilitation since appellee had presented no proposed plan. Appellant’s actions only added to the difficulties in obtaining a report or plan. If appellant had ever expressed a willingness to explore appellee’s rehabilitation potentials, we may have looked on its position here more favorably. For instance, if appellant had cooperated in obtaining an evaluation report, it would have adequately preserved its right to review any proposed rehabilitation program. Here, appellant denied the need for rehabilitation and its uncooperativeness in this regard proved an obstacle to overcome before either a report or program could be obtained. Under these circumstances, the Commission was fully justified in finding appellant controverted all rehabilitation benefits.
The next issue is whether the Commission was correct in deciding appellant controverted appellee’s entitlement to permanent disability benefits. We find it was. This point also involves the previously mentioned May 13 letter to appellee’s attorney. In the letter, appellant offered to pay appellee 15% for his disability. This offer was based primarily on Dr. Shuffield’s 10% permanent partial disability rating. Appellant stopped paying benefits at this same time and payments were not resumed until after the September 17, 1980, hearing.
Our court has followed the rule that the mere failure of an employer to pay compensation benefits does not amount to controversion, especially when the carrier accepts the injury as compensable and is attempting to determine the extent of disability. Hamrick v. Colson Company, 271 Ark. 740, 610 S. W.2d 281 (Ark. App. 1981). On the same subject, our Supreme Court held in Aluminum Company of America v. Henning, 260 Ark. 699, 543 S.W.2d 480 (1976), that if there is substantial evidence to support a finding that a claim is controverted, there is no abuse of the Commission’s discretion to award attorney’s fees, and this Court cannot reverse the Commission’s finding in the absence of a gross abuse of discretion. Here, appellee’s permanent partial disability was known to be at least 10% to the body as a whole as early as April 14, 1980, the date of Dr. Shuffield’s report. Dr. Chakales announced his physical impairment rating of 10 to 15% by a report dated July 30, 1980. Chakales included an additional rating to appellee’s right arm. With this information, appellant had full knowledge that the extent of appellee’s disability would be at least 10%, yet it terminated payment of benefits. Appellant attempts to justify its terminating benefits by arguing appellee’s attorney would not respond toils May 13 offer to settle. Of course, appellant knew appellee had been rated 10% disabled when it wrote this letter. It also knew that appellee’s attorney had previously demanded 30% in his letter of May 1, 1980. On these facts, we cannot say the Commission abused its discretion.
The third issue raised by appellant concerns the Commission’s finding that the appellee’s healing period had not ended and that he was entitled to temporary total disability. This question is controlled by our holding in Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). In Mad Butcher, we determined that the healing period continues until the employee is as restored as the permanent character of his injury will permit. If the underlying condition causing the disability has become stable and if nothing further in the way of treatment will improve that condition, the healing period has ended. The medical evidence reflects appellee has reached his maximum healing period. The latest date to which this period could extend was when Dr. Chakales released him on July 30, 1980. Thus, temporary total disability benefits could have been awarded appellee only within the healing period but not after it had ended. See also, Arkansas State Highway & Transportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). Therefore, we reverse the Commission’s award of temporary total benefits after July 30, 1980. However, consistent with the procedure we adopted in Mad Butcher, we remand this matter for the Commission to decide whether appellee is entitled to “current total disability benefits.” See City of Humphrey v. Woodward, 4 Ark. App. 64, 628 S.W.2d 574 (1982).
The final question we address is whether appellee was excused from formally petitioning for a change in physicians. The procedure to change physicians is set forth in Ark. Stat. Ann. § 81-1311 (Supp. 1979). Among other things, §81-1311 provides that the Commission may order a change of physicians at the expense of the employer when, in its discretion, such change is deemed necessary or desirable. The Supreme Court has recognized the Commission’s discretionary authority to approve such changes retroactively with respect to the employer’s liability for fees and expenses incurred after the change. Emerson Electric Co. v. White, 262 Ark. 376, 557 S.W.2d 189 (1977).
The record before us reflects appellant’s adjuster was called by appellee immediately after he was released by Dr. Shuffield. Appellee testified the adjuster told him to go to another doctor after appellee said that he was still having back problems. The adjuster later testified that he recalled appellee’s requesting another doctor but that he normally would not have suggested Dr. Chakales. He admitted that his standard procedure in this case would be to suggest a doctor or to try to agree on a mutually acceptable physician. Based upon these facts, the Commission inferred that the appellant had led the appellee to believe, even though mistakenly, that he could be examined by a physician of his choice. Since this was within the fact finding province of the Commission, we are unable to say it erred or that it abused its discretion in the retroactive approval of the change.
Affirmed in part and reversed and remanded in part.
Mayfield, C.J., concurs.
Sections 81-1310 (f) and 81-1311 were subsequently amended by Act 290 of 1981. | [
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James R. Cooper, Judge.
This is the second time that this case has been before us. In the first case, Rainbolt v. Everett, 3 Ark. App. 48, 621 S.W.2d 877 (1981), the appellant appealed from a finding that she voluntarily quit her last employment in order to accompany her spouse to a new place of residence but did not immediately enter the new labor market and become available for suitable work. We reversed the Board of Review’s decision, holding that the “Employment Security Division may be estopped to deny that appellant made an immediate entry into the labor market because of the apparent representations of its agent. ” However, consistent with the procedure used by the Arkansas Supreme Court in Foote’s Dixie Dandy, Inc. v. McHenry, 270 Ark. 816, 607 S.W.2d 323 (1980), we remanded the case in order to allow the State the opportunity to present evidence in order to rebut appellant’s estoppel defense. The reason that we allowed the State the opportunity to present additional evidence was because this was the first case in which the doctrine of estoppel had been applied to the State where a claimant was seeking unemployment benefits. The State was justified in the lower proceeding in relying solely on the theory that estoppel could not be applied to the State, and therefore there was no reason for the State to present evidence to contradict appellant’s estoppel defense.
On remand, three issues remained open. They were estoppel, registration and reporting requirements, and whether the appellant had been doing those things which a reasonably prudent individual would be expected to do to secure employment. The reason these last two issues were left open was because the Appeal Tribunal and the Board of Review had no reason to consider these issues, since they denied unemployment benefits on another ground. Apparently, these are two issues which may be considered by the Appeal Tribunal even if it reverses the Agency’s original grounds for disqualification. See, Teegarden v. Director, Ark. Employment Sec., 267 Ark. 893, 591 S.W.2d 675 (Ark. App. 1979).
After this case was remanded, the Appeal Tribunal conducted a hearing, at which the State produced Mr. Keith Johnson and elicited testimony from him regarding the facts giving rise to appellant’s estoppel defense. Mr. Johnson testified that he did not remember any conversation with appellant at her initial interview. Mr. Johnson testified that his standard procedure was to set a date for appellant to return in order to view a film concerning her unemployment benefits and to give her literature regarding her unemployment benefits, if he had the literature.
The Board of Review, after reviewing the testimony at the second hearing, discussed Mr. Johnson’s testimony in its findings of fact and conclusions of law section of its opinion. Then the Board said:
The Court of Appeals stated that the sole question involved is whether this claimant immediately entered the labor market. The Board must find that she never left the area in question since her move only involved a distance of 20 to 21 miles. The Paragould job market is considered to be a part of the job market included in the Jonesboro area. It is further noted that in the reply from the employer on 501.3 Notice of Claim Filed Form that “Employee quit of own accord indicating unwillingness to drive distance of approximately 22 miles from home to work”. The Board must find that this claimant quit her job for personal reasons.
The issue on which the Board denied appellant her unemployment benefits was not open to the Board on remand. We said in the first case:
The Agency, Appeal Tribunal, and Board of Review specifically found that appellant did quit to accompany her spouse to a new place of residence, so that issue is not before us. The sole question involved is whether she immediately entered the labor market....
While the Board of Review is not a court, it was created by the legislature and endowed with quasi-judicial functions. The doctrine of res judicata applies to administrative proceedings when the agency is acting in a judicial capacity and resolves disputed issues properly before it, which the parties have had an adequate opportunity to litigate. United States v. Utah Const. & Min. Co., 384 U.S. 394, 86 S. Ct. 1545, 16 L.Ed.2d 642 (1966); Andrews v. Gross & Janes Tie Co., 214 Ark. 210, 216 S.W.2d 386 (1949). Therefore, it also seems appropriate to apply the law of the case doctrine to administrative proceedings, when they involve quasi-judicial functions.
Our opinion in the first case became the law of the case. Under that doctrine, issues which were decided or issues which could have been raised on appeal are conclusively adjudicated and can no longer be litigated by the parties. See, Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979); Ouachita Hospital v. Marshall, 2 Ark. App. 273, 621 S. W.2d 7 (1981). On remand, the Board was restricted to the three issues which we said remained open.
This case is once again remanded to the Board of Review. On remand, the Board is directed to decide the issue of estoppel on the existing record, without additional hearings or the submission of affidavits, and to certify the record of its decision to this Court within thirty days from the date of this decision. Of course, copies of that decision must be sent to the attorneys of record and any party not represented by counsel, in order that the aggrieved party may file a timely notice of appeal.
Reversed and remanded.
Whether this type of action by the Appeal Tribunal will survive a challenge based on procedural due process is open to debate. See, Teegarden, supra (Dissenting opinion). | [
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Lawson Cloninger, Judge.
In this eminent domain proceeding the Drew County Court acquired a portion of appellants’ lands for the widening and paving of an existing gravel highway designated as State Highway 277. The appellants, William Riley, Ed Gibson and Travis Gibson, filed a claim in Drew County Court seeking to have Drew County move and replace appellants’ fences along the right-of-way. The Drew County Court denied the claims, and on appeal to the circuit court, a jury returned a verdict denying the claims of appellants.
The question asked by appellants on this appeal is this: “Is the county liable for the replacement of fences taken in an eminent domain proceeding or does enhanced value cover that also?”
Evidence was presented which indicates that appellants do not want to sell their land and are unable to build new fences for the control of their livestock. However, there was substantial evidence introduced from which the jury could find that the enhanced value of appellants’ land amounted to considerably more than the value of the land taken plus the cost of erecting new fences.
Where there is a partial taking of a landowner’s property, as is the case here, the rule is that the measure of damages is the difference between the value of the whole land before the appropriation and the value of the portion remaining after the appropriation. Arkansas State Highway Commission v. Fox, 230 Ark. 287, 322 S.W.2d 81 (1959). In Cullum v. Van Buren County, 223 Ark. 525, 267 S.W.2d 14 (1954), the Arkansas Supreme Court held that even though a landowner’s fence, trees and well were destroyed by the construction of a road, the property owner had received just compensation by virtue of the benefits that his property derived from the establishment of a new road. The concept of enhancement was recognized in that case, and the landowner was disallowed any damages. In the case before the court, the jury considered all the evidence regarding appellants’ damages and the enhancement value of the remaining property, and we must conclude that the evidence was sufficient to support the verdict.
Affirmed. | [
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James R. Cooper, Judge.
Appellant was charged with aggravated robbery in violation of Ark. Stat. Ann. § 41-2102 (Supp. 1981). After a trial by jury, he was found guilty and sentenced to twenty-five years in the Arkansas Department of Corrections. From that decision, comes this appeal.
Appellant raises four grounds for reversal.
THE GRANTING OF A CONTINUANCE
The record reflects that the appellant initially appeared for plea and arraignment without an attorney on February 3, 1981. Arraignment was rescheduled for March 3, 1981; appellant was found to be indigent; and Mr. Robinson, a local attorney, was appointed to represent him. Trial was scheduled for June 29, 1981. On April 13, 1981, Mr. Robinson filed a motion to be relieved because appellant had retained an attorney. Mr. Robinson was relieved as counsel and Mr. Moorehead was substituted. On June 11, 1981, Mr. Moorehead, the retained attorney, filed a motion for a continuance from the June 29, 1981, trial date. That motion was granted and trial was rescheduled for August 12, 1981.
On August 11,1981, Mr. Moorehead filed a motion to be relieved as counsel for appellant. The motion alleged that irreconcilable differences had arisen between Mr. Moore-head and his client, and that he could not adequately represent him. The motion further indicated that appellant wished to have other counsel. The trial court, on the day of trial, heard arguments from counsel and from appellant, and denied the motion. Appellant was given the choice of proceeding to trial with Mr. Moorehead’s services or representing himself. Appellant admitted that he had only contacted one other attorney and had not retained that attorney. Appellant indicated that he had been somewhat dissatisfied with Mr. Moorehead’s services for approximately two weeks prior to trial but had not retained other counsel, nor had he contacted any attorneys until the week of trial.
Had the trial court granted the appellant’s motion for a change of counsel, that would have necessitated the granting of a continuance for the new attorney to have adequately prepared for trial. Therefore, the motion for a change of counsel is viewed as a motion for a continuance. Leggins v. State, 271 Ark. 616, 609 S.W.2d 76 (1980).
The question of whether a continuance should have been granted is within the discretion of the trial court and the burden is on the appellant to show that there has been an abuse of discretion. Thorne v. State, 269 Ark. 556, 601 S.W.2d 886 (1980); Leggins v. State, supra.
In Leggins, supra, the Arkansas Supreme Court dealt with a situation similar to the case at bar and said:
If such a change [of counsel] would require the postponement of trial because of inadequate time for a new attorney to properly prepare a defendant's case, in denying or granting the change, the court may consider such factors as the reasons for the change, whether other counsel has already been identified, whether the defendant has acted diligently in seeking the change, and whether the denial is likely to result in any prejudice to defendant.
The Court went on to say:
In the instant case, the appellant neither provided a material reason for his requested change of attorneys, nor identified an attorney who would proceed to trial with him. He was dilatory in making the motion and identified no prejudice to his case from a failure to grant the motion.
We find the language from Leggins appropriate in this case, since essentially the same factors are present in the case at bar as were present in Leggins. Accordingly, we find no merit to appellant’s argument that the court erred in failing to grant a continuance so that he could obtain other counsel.
THE NUMBER OF PEREMPTORY CHALLENGES
Appellant alleges that he was entitled to twelve peremptory challenges, and that the trial court erred in limiting him to eight. Act 115 of 1981 amended Ark. Stat. Ann. § 43-1922 (Repl. 1977), and after the amendment twelve peremptory challenges are allowed only in cases involving prosecutions for capital murder. Appellant was tried after the effective date of the amendment, but the crime was committed at a time when the statute in question allowed twelve peremptory challenges for cases involving prosecutions for offenses punishable by death or life imprisonment. Essentially, appellant is arguing that the statute in question is substantive law rather than procedural law and that his rights have been violated by the failure of the trial court to apply the statute in effect at the time of the alleged commission of the crime.
In Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981), the Arkansas Supreme Court dealt with the argument that a former statute requiring an incarcerated defendant to be tried within two terms of court laid down a rule of substantive law which the court could not supersede by a rule of procedure permitting a longer delay. In Cassell, supra, the court stated:
In criminal matters substantive law declares what acts are crimes and prescribes the punishment; procedural law provides or regulates the steps by which one who violates a criminal statute is punished.
In Duncan v. State, 260 Ark. 491, 541 S.W.2d 926 (1976), the Arkansas Supreme Court said:
At the retrial the newly adopted Uniform Rules of Evidence will be in force, because new procedural statutes ordinarily apply to pending cases.
Consequently, we hold that the 1981 amendment to the statute in question affected procedural rather than substantive law, and that the trial court did not err in failing to grant appellant’s request for additional peremptory challenges.
THE LIMITATION OF CROSS-EXAMINATION
Appellant argues that, on several occasions, the trial court erred in sustaining objections to appellant’s cross-examination of various witnesses. Neither the questions, answers, objections, nor rulings are abstracted and thus, from this record, we are unable to determine whether counsel was unduly limited. However, taking appellant’s arguments at face value and viewing them in light of the fact that the trial court has considerable latitude of discretion in determining the scope of proper cross-examination, we find no abuse of discretion exercised by the court in limiting cross-examination as was done in this case. Shepherd v. State, 270 Ark. 457, 605 S.W.2d 414 (1980).
THE SUFFICIENCY OF THE EVIDENCE
The victim testified that, as he left his home going toward his armored car, an individual pulled a gun on him and demanded his keys. After a scuffle with that individual, and another man who came on the scene, one of the individuals shot him and ran away. The victim fired at one of the individuals four times. The victim could not identify his assailants. Another witness observed an individual running away from the scene, but she could not identify him. Another witness identified appellant’s co-defendant as being a person who was near the premises at approximately the time the crime occurred. She observed the two men walking toward the apartment building, coming back, walking away from the apartment building toward the area of the victim’s house, and then running back toward the apartments. Upon observing a police car approaching, she notified the police of their suspicious activity. The suspects were located in the vicinity and were arrested.
A Pine Bluff police officer collected various bits of physical evidence found in the victim’s carport along with a ski mask and a .32 caliber automatic pistol. Another officer found two pairs of green coveralls, a patch of blue cloth, and a pair of brown jersey gloves. Other items of physical evidence were located and all of these items were delivered to Berwin Monroe, evidence analyst for the State Crime Laboratory. His testimony indicated that the items found were consistent with having been possessed by the defendants in the area in which they were seen. The appellant’s shirt was also analyzed and fibers matching it were found within one of the pairs of coveralls. The coveralls were thus connected with the appellant, as well as the crime scene, since vegetation found on the coveralls was consistent with that located in the area where the attempted robbery took place.
In criminal cases, we affirm where there is substantial evidence to support the verdict. Lunon v. State, 264 Ark. 188, 569 S.W.2d 663 (1978); Pope v. State, 262 Ark. 476, 557 S.W.2d 887 (1977). In determining whether the evidence is substantial, we review the evidence in the light most favorable to the appellee. Pope v. State, supra. Substantial evidence has been defined as evidence which is
of sufficient force and character that it will with reasonable and material certainty and precision, compel a conclusion one way or the other. It must force or induce the mind to pass beyond a suspicion or conjecture. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980).
Although the evidence is circumstantial, it is not insufficient. Circumstantial evidence must be consistent with the guilt of the defendant and inconsistent with any other reasonable conclusion. Cassell v. State, supra; Wortham v. State, 5 Ark. App. 161, 634 S.W.2d 141 (1981).
There was ample evidence from which the jury could conclude that the appellant was guilty of the offense charged. We conclude that the evidence was substantial, and therefore we find this argument to be without merit.
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Tom Glaze, Judge.
This is an eminent domain case. The sole issue on appeal is whether there is substantial evidence to support the jury’s verdict. Appellants contend the testimony of appellee’s expert had no fair and reasonable basis and was not sufficient to support the award of damages given by the jury. We cannot agree.
Appellants owned approximately 10.7 acres on the northwest corner of Asher Avenue and Thirty-Sixth Street (Boyle Park Road), on which the appellee imposed a permanent easement in October, 1979, affecting .11 acre of the property, a narrow strip along Thirty-Sixth Street. A temporary construction easement was also imposed to construct a bridge over Rock Creek on Asher Avenue. Because of this construction, there was a loss of access from Asher Avenue to appellants’ property, which had frontage on both Asher and Thirty-Sixth Street. The parties agreed that the best use of the property was for commercial purposes, and the evidence tended to show it was ideal for a shopping center site.
At trial, three expert witnesses testified that the market value of appellants’ property was diminished by the loss of access to Asher Avenue. One of these witnesses, Mr. Tommy Lasiter, was experienced in the development of shopping centers, and it was his opinion that the property’s value was significantly diminished. He did not assign an amount to the loss. Appellants’ other two witnesses agreed with Lasiter’s opinion and assigned damages in the respective amounts of $77,191 and $101,900. Appellee’s expert, Walker Watson, opined that no diminution in value ensued from the loss of access. He limited damages to the .11 acre taken and assigned an amount of $7,500. This same amount was awarded by the jury.
In arguing for reversal, one of the cases relied upon by appellants is Arkansas State Highway Commission v. Byars, 221 Ark. 845, 256 S.W.2d 738 (1953). The court in Byars noted the rule that whether there is substantial evidence to support a verdict is not a question of fact, but one of law. It further stated that because a witness testifies to a conclusion on his part does not necessarily mean that the evidence given by him is substantial, when he has not given a satisfactory explanation of how he arrived at the conclusion. In Campbell v. State, 265 Ark. 77, 89, 576 S.W.2d 938, 946 (1979), the Supreme Court cited Byars when stating the following:
It is true that we are not required, on appellate review, to accept as substantial evidence the opinion of an expert when it clearly appears that it is opposed to physical facts, common knowledge, the dictates of common sense or is pure speculation. Easton v. H. Boker & Co., 226 Ark. 687, 292 S.W.2d 257 (1956).
In view of the rules set forth in Byars and Campbell, we briefly review the expert testimony given in this cause. In determining the sufficiency of the evidence to support a verdict, we must view the evidence with every reasonable inference arising therefrom in the light most favorable to appellee, and if there is any substantial evidence to support the verdict, it cannot be disturbed by this court. See, Arkansas State Highway Commission v. Addy, 231 Ark. 381, 383, 329 S.W.2d 535, 536 (1959).
Appellee’s expert witness, Mr. Watson, has been an appraiser for the Highway Department for over twenty-three years and involved in real estate since 1947. Although he had no experience in evaluating shopping centers, his background and experience is essentially the same as two of the expert witnesses who testified on behalf of the appellants. All of the expert witnesses used the same method of appraisal in arriving at damages, but their amounts differed. The basic, underlying disagreement between Watson and the other three experts was that Watson did not believe that the loss of access from Asher Avenue affected the value of the property. In support of his opinion, Watson stated that a part of appellants’ property was located in the floodway and could only be used for parking. Watson explained that any improvement on the property would have to be on the higher part of appellants’ land which was adjacent to Boyle Park and located away from Asher. For this reason, he concluded the best access to the property is Thirty-Sixth Street (Boyle Park Road) — not Asher. Watson testified that the construction would improve the Thirty-Sixth Street access to appellants’ property and provide a closer egress and ingress to any improvements on it. While Watson acknowledged the loss of the Asher access, he believed the major value of Asher is that people can view appellants’ property from it but gain access to the property via Thirty-Sixth Street.
The testimony given by Watson was not opposed to the physical facts — although the appellants strongly disagree with the conclusions reached by Watson. He was qualified, without challenge, as an expert to testify concerning specialized knowledge to assist the jury in understanding other evidence and in determining the facts in issue. See Unif. R. Evid. 702.
The record reflects no objections concerning any of the matters to which Watson testified as being outside his field of expertise. On cross-examination, appellants’ counsel thoroughly questioned him regarding all the facts and data underlying his opinions. In addition, the trial court gave the following instruction applicable to opinion evidence:
COURT’S INSTRUCTION NO. 8
Much of the evidence introduced in this case has been what is called “opinion evidence.” Opinion evidence is not a statement of fact, but is merely a statement of the witness’s opinion. It is your duty to determine whether such opinions are correct or erroneous, and in arriving at your conclusions, you should consider the grounds upon which the witnesses based their opinions, their skill, experience, and knowledge of the matters about which they testified; and the reasonableness or unreasonableness of their opinion as viewed in the light of their knowledge and experience, using in this connection your own common sense, knowledge and experiences of life as reasonable and prudent persons.
In weight [sic] the opinion evidence, you should consider whether the expert has explained the factual and logical basis of his opinion and you should not consider his testimony as evidence of value if it is contrary to the physical facts about the property developed during the trial of the case, or if it is not reasonable.
On the facts presented, we cannot say Watson’s opinion testimony was without a fair or reasonable basis or that it was insubstantial. If we had been the original fact-finders in the trial of this cause, we may well have believed appellants’ expert testimony over that of appellee’s. However, we believe that the weight to be given Watson’s testimony is clearly within the jury’s province to decide, and accordingly we find no error in its decision.
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Lawson Cloninger, Judge.
The appellant, Gina L. Ward, was charged jointly with her husband, Randy Ward, with first degree murder in the death of the couple’s four-month old son, Todd Ward, who died from skull fractures and internal injuries. Appellant’s motion for severance was granted. Appellant was convicted by a jury verdict of second degree murder and sentenced to five years in prison.
Appellant contends that the trial court erred in failing to grant her motion for a directed verdict of acquittal, and that there is no substantial evidence to support the jury’s verdict. We hold that the action of the trial court was proper and the judgment is affirmed.
Ark. Stat. Ann. § 41-1503 (Repl. 1977), provides that a person commits murder in the second degree if . . . (b) he knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life; or (c) with the purpose of causing serious physical injury to another person, he causes the death of any person.
A directed verdict of acquittal is proper only when no fact issue exists, and the court will review the evidence on appeal in a light most favorable to the appellee and affirm if there is any substantial evidence to support the verdict. Harris v. State, 262 Ark. 680, 561 S.W.2d 69 (1978).
Appellant insists that all the evidence connecting her with Todd’s death is circumstantial, and that is correct, because there were no eyewitnesses. For circumstantial evidence to be sufficient, it must exclude every other reasonable hypothesis consistent with innocence, but the question of whether it does exclude every other reasonable hypothesis is usually for the fact finder to determine. Smith v. State, 264 Ark. 874, 575 S.W.2d 677 (1979). Although the jury should be instructed, as was done in this case, that circumstantial evidence must be consistent with the guilt of the defendant and inconsistent with any other reasonable conclusion, that is not the standard by which we review the evidence. Our responsibility is to determine whether the verdict is supported by substantial evidence, which means whether the jury could have reached its conclusion without having to resort to speculation or conjecture. Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981).
An examination of the evidence reveals that Todd, the child, was left with appellant’s mother for several hours on Saturday, September 19, 1981, and that appellant and her husband picked up the child at about 8:00 p.m. that evening. Appellant’s mother testified that at that time Todd ate well and had no bruises or scratches on him, but had “just a tiny blue speck on his cheek.” At 2:00 p.m. the next day, Sunday, appellant and her husband left the child with a babysitter, Mrs. Puckett, so that the parents could go shopping. Upon arriving at the babysitter’s, appellant took the child directly to the nursery and told the Pucketts not to bother the child because he was sick. Mrs. Puckett testified that she glanced at Todd and saw that he had a black eye, bruises and a little dug-out place on the side of his nose. The babysitter and her husband found the child gasping for breath at 2:30 p.m. and discovered that he had bruises and scratches all over his face, forehead and head. Appellant and her husband took Todd to the home of appellant’s mother, and from there the child was taken to the hospital where he died the following day.
Dr. William R. Gollie saw Todd at 6:00 p.m. in the hospital emergency room. Dr. Collie testified that Todd had numerous bruises and scratches about the head and was in shock. At first, it was thought that a head injury was the cause of the child’s condition, but within two hours Todd’s abdominal cavity began to swell tremendously. It was then discovered that the real source of Todd’s problem was a ruptured intestine within the abdominal cavity. X-rays revealed that Todd also had a fractured skull. Dr. Collie testified that the ruptured intestine would require an impact of considerable force, that such an injury is very rare in a child of Todd’s age, and that it could not have been caused by a fall; that the internal abdominal injury could have been caused by force from the front or the back, and probably occurred 24 to 36 hours before admission. Dr. Collie stated that the skull fracture could have been caused by a fall, but that it would be “extraordinary” for a four-month old to fall and fracture his skull in that manner because of the pliability of the skulls of infants. Dr. Collie testified that Todd could not have caused the injuries on his cheek and the side of his nose. Although Dr. Collie asked appellant for an explanation of the injuries when Todd was admitted to the hospital, appellant offered none.
Dr. Dennis Smith, a pathologist and medical examiner for the state, performed an autopsy on September 22, 1981. Dr. Smith testified that the cause of death was a “blunt trauma to the head and to the abdomen,” and that he classified the death as a homicide, with the abdominal injury being the immediate cause of death. Dr. Smith estimated that the abdominal injury occurred within 24 hours of surgery. The record is not clear as to the time of surgery, but it was certainly no earlier than 8:00 p.m. on September 21.
In Williams v. State, 267 Ark. 527, 593 S.W.2d 8 (1979), appellant was convicted of committing first degree battery on her ten-month old daughter and assessed a ten-year prison sentence. On appeal, she alleged that there was a lack of evidence to support the jury’s finding of guilt. Evidence showed that the child was suffering from severe injuries which included burns, fractured ribs, and various bruises and contusions on her body. The medical testimony was that the child had suffered from child abuse. Appellant denied abusing the child in any way and suggested that perhaps the child had fallen. The Arkansas Supreme Court held that although the evidence was circumstantial there was sufficient evidence to support the jury’s finding that appellant had abused her child. The court held that there was no longer a distinction between an accessory and a principal and that there was no doubt that appellant could not have been around the child without knowing of her injuries.
In Limber v. State, 264 Ark. 479, 572 S.W.2d 402 (1978) the father was found guilty of second degree murder and given a twenty-year prison sentence, and the mother was given a five-year sentence for manslaughter. Appellant, the mother, argued that there was no evidence submitted by the state which connected her to any of the incidents or accidents that could have caused the death of her nineteen-month old son. The court recognized that although the evidence was circumstantial, there was evidence to indicate that she had seen her husband slap the child and spank him with such force as to leave a bruise. She admitted that she had seen him use his foot on the child. She testified that she had observed several bruises and cut places on her child and that she had argued many times about her husband’s disciplining the children. The court held that “her complicity, according to the evidence, was more than innocent bystander.”
In the case now before this court Dr. Collie estimated that Todd had sustained the skull fractures between 6:00 a.m. and 6:00 p.m. Friday, and Dr. Smith testified that the abdominal injuries which were the immediate cause of death were sustained somewhere around 10:00 p.m. on Saturday or 24 hours prior to surgery. It is obvious that a four-month old child is not mobile, and it is uncontradicted that he was in the custody and care of his parents from 8:00 p.m. Saturday until 2:00 p.m. Sunday. We do not distinguish between an accessory and a principal, Ark. Stat. Ann. § 41-301 et seq. (Repl. 1977), and there is no doubt that appellant could not have been around the child without knowing of his injuries. Williams v. State, supra. The jury could properly infer that the parents were responsible for Todd’s care and health during the period in which the injuries were sustained, and that the injuries were either inflicted by one or both of them or could be explained. The jury was at liberty to accept the testimony of appellant’s mother, to the effect that Todd had no visible bruises when she saw him at 8:00 p.m. Saturday, or they could disregard her testimony and conclude that the injuries to Todd’s head occurred before that time.
In Cassell v. State, supra, the Arkansas Supreme Court noted that "... defense counsel have not in the course of an excellent brief ventured to formulate a theory of the crime by which Cassell might emerge as an innocent man . . . Nor have we been able to reconcile such a theory with the evidence.” In the present case neither appellant nor her husband testified, but it was not unreasonable for the jury to find that appellant could not have been completely ignorant of any event which inflicted such violent blows to her son. The doctors’ testimony established as conclusively as it is possible to do that the injuries were not self-inflicted or the result of a fall or other accident, and the only logical inference is that one or both of the parents inflicted the blows.
When appellant was asked for an explanation of the injuries at the hospital she offered none, and later made a statement to a social worker that Todd scratched himself on the way to the hospital. It is significant that when appellant went to get Todd at the Pucketts’ house on Sunday afternoon, appellant called her husband to observe how Todd jerked when she touched his abdomen. She did not mention Todd’s tenderness about his abdomen at the hospital, and the doctors did not discover the internal injuries until two hours later when the child’s abdomen swelled.
Instructions were given to the jury as to first degree murder, second degree murder, manslaughter and negligent homicide. It was proper to present the issues of fact to the jury and there is substantial evidence to support a conviction for second degree murder.
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Lawson Cloninger, Judge.
Appellant, Rickey Gene Bell, was charged with aggravated robbery and kidnapping on November 24,1980. He was convicted by jury verdict and sentenced to thirty years imprisonment. He now brings this appeal.
In viewing the evidence in the light most favorable to the appellee, as we must do on appeal, we find that on the morning of November 24,1980, the state’s principal witness, Donnie Payton, was working at Cross Roads Amoco Service Station in Independence County, Arkansas. Appellant, Rickey Gene Bell, drove into the service station and got one dollar’s worth of gas. He paid for the gasoline and left. Approximately twenty minutes later, he came back to the service station and asked Mr. Payton to fill up the gasoline tank. Mr. Payton thereupon went back into the service station and appellant followed him. Appellant put a gun to Mr. Payton’s head and told him to open the cash register. Appellant subsequently took between $150 and $200 out of the cash register. He then told Mr. Payton to get into the car and they left together. They rode around for approximately twenty to thirty minutes, at which time appellant let Mr. Payton out of the car on a country road.
Appellant’s first point for reversal is that the trial court erred in its ruling regarding the extent to which the state would be allowed to prove past convictions for the purpose of impeaching appellant’s credibilty on the witness stand. Before trial, appellant sought a preliminary ruling regarding the extent to which details of previous convictions would be admissible. The trial court allowed proof beyond the fact of felony conviction and appellant alleges that this was error. The trial court, however, limited the inquiry by the prosecution to whether or not appellant was convicted of a felony and what that felony was.
Ark. Stat. Ann. § 28-1001, Rule 601 (a) (Repl. 1977) reads in pertinent part:
For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted, but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or a witness, or (2) involves dishonesty for false statement regardless of the punishment.
Appellant specifically cites Jones v. State, 274 Ark. 379, 625 S.W.2d 471 (1981) for this point. In Jones, supra, appellant was charged with sexual abuse in the first degree. The defense counsel presented a pre-trial motion asking the court to rule that if Jones elected to testify the prosecution could not impeach his credibility by showing that Jones had pleaded nolo contendere to an earlier charge of rape. It was argued that the prejudicial effect of the earlier conviction would outweigh its probative value. The Arkansas Supreme Court agreed with appellant, holding that the prejudicial effect of the previous conviction clearly outweighed its value bearing on credibility. The court recognized that at the pre-trial hearing, it was admitted by defense counsel that Jones’s two previous convictions for burglary and theft would be admissible if he testified. Hence, the court held that a third conviction, for a similar sexual assault upon a little boy, would have been of scant probative value as compared to its significantly prejudicial effect on the jury.
In Smith v. State, 277 Ark. 64, 639 S.W.2d 348 (1982), appellant was tried and convicted of the offense of rape. On appeal, he contended that it was error for the trial court to deny the defendant’s motion in limine and allow into evidence prior convictions of the defendant. Appellant had previously been convicted of the offenses of burglary and rape, and the trial court ruled that the evidence was admissible to impeach the credibility of appellant. On appeal, the Arkansas Supreme Court affirmed the decision of the trial court, holding that the trial court did not abuse its discretion, and “these matters must be decided on a case by case basis.” The court specifically recognized that although the evidence might not be admissible under Rule 404 (b), it could be admissible under Rule 609 for a purpose of attacking the credibility of a witness.
In Washington v. State, 6 Ark. App. 85, 638 S.W.2d 690 (1982), appellant was convicted of second degree murder, and his only point for reversal was that the trial court erred in failing to grant his motion in limine, which sought to prohibit the state from offering evidence of a previous murder conviction. Appellant indicated that he intended to testify in his own defense. The court recognized that where a defendant in a criminal case testifies in his own behalf, his credibility is placed in issue and the state may impeach his testimony by proof of a prior felony conviction. [See Gustafson v. State, 267 Ark. 278, 590 S.W.2d 853 (1979)]. The court also recognized that a trial court has a great deal of discretion in determining whether the probative value of the prior conviction outweighs its prejudicial effect, and the decision of the trial court should not be reversed absent an abuse of discretion. See also Cooley v. State, 4 Ark. App. 238, 629 S.W.2d 311 (1982). As set out in Washington, supra, some of the factors which should be considered by the trial court are:
1. Impeachment value of the prior crime.
2. The date of the conviction and the witness’s subsequent history.
3. The similarity between the prior conviction and the crime charged.
4. The importance of the defendant’s testimony.
5. The centrality of the credibility issue.
The Arkansas Court of Appeals held in Washington that the trial court did not abuse its discretion in admitting the prior felony conviction for purposes of impeaching appellant’s credibility. The court recognized that there was a direct conflict in the evidence. The testimony of the state’s witnesses, if accepted by the jury, would result in a murder conviction. The appellant’s testimony, if accepted by the jury, would have resulted in an acquittal. Therefore, the whole case turned on the resolution of the credibility factor between the state’s witness and the appellant.
In the instant case, if appellant had testified, his testimony would have been in direct conflict to the testimony of the state’s principal witness. Hence, we have the same situation as was present in Washington. Furthermore, appellant has failed to show that any unfair prejudice would result from the state introducing the prior felony conviction. It is unclear from the record, but, at one point, the trial court made the statement that the previous convictions dealt with a burglary conviction and a breaking and entering conviction. Hence, it is the opinion of this court that there was no abuse of discretion in the trial court’s decision to allow the state to impeach appellant’s credibility by naming the previous felony convictions.
Appellant’s second point for reversal is that his right against double jeopardy was violated when the trial court ordered a second trial after the jury could not reach a verdict in the first trial. Upon conclusion of the first trial, the jury retired and deliberated for approximately an hour and fifteen minutes. Upon their return, the foreman informed the court that they had been unable to reach a verdict. The court allowed the jury to deliberate for a while longer. The jury returned after another hour and informed the court that they had still not reached a verdict. The trial judge allowed the jury to retire again. The jury was brought back to the courtroom after two additional hours, and the court asked the foreman if they had made any progress. The foreman told the trial judge that the jury was split down the middle. The court asked the foreman if he thought it would make any difference if the jury had a night’s sleep. The foreman stated that he thought in his opinion it would not. The court thereupon declared a mistrial.
Ark. Stat. Ann. § 43-2140 (Repl. 1977) provides in pertinent part:
If, after retirement, [the jury] does not agree in a verdict, and it satisfactorily appears that there is no probability they can agree, the court may discharge them.
Ark. Stat. Ann. § 43-2141 (Repl. 1977) provides:
In all cases where a jury is discharged, the cause may again be tried at the same or another term of the court.
This very issue was decided by the Arkansas Supreme Court in Beard, Morrison and Cook v. State, 277 Ark. 35, 639 S.W.2d 52 (1982) in which it was held that a defendant’s double jeopardy rights are not violated if he is required to stand trial following a mistrial due to a hung jury.
Appellant’s third point for reversal is that the trial court erred in failing to exclude an in-court identification by the alleged victim, which was tainted by a suggestive pre-arrest identification procedure. Appellant bases this assertion on the fact that the state’s principal witness, Donnie Payton, identified appellant in a photographic lineup in which he also viewed five other pictures with similar characteristics of appellant. Previous to the photographic lineup, Donnie Payton had gone through several mug books in which he could not identify the appellant. Appellant’s picture was in one of the mug books, but testimony indicated that this picture was four years old, and that appellant did not look the same. Thereafter, a photographic lineup was provided to Mr. Payton. He subsequently identified appellant as the man who committed the robbery.
The rule is that suppression of an in-court identification is not warranted unless the pre-trial photographic lineup was so suggestive as to create a substantial likelihood of irreparable misidentification. Fountain v. State, 273 Ark. 457, 620 S.W.2d 936 (1981). Factors to be considered in testing the reliability of a lineup identification are:
1. Opportunity of the witness to view the criminal at the time of the crime.
2. The witness’s degree of attention.
3. The accuracy of the witness’s prior description of the criminal.
4. The level of certainty demonstrated by the witness at the confrontation.
5. The length of time between the crime and the confrontation.
See Fountain, supra; McCraw v. State, 262 Ark. 707, 561 S.W.2d 71 (1978).
Applying the factors to the instant case, Donnie Payton identified appellant pursuant to the photographic lineup on the same day that the robbery was committed. He had the opportunity to view the criminal for a long period of time during the robbery and kidnapping. He gave an accurate description of the criminal to the police. Furthermore, he positively identified appellant at the photographic lineup and also in court. Hence, we hold that there was no element of suggestiveness in the pre-trial lineup identification and accordingly, it was not error for the trial court to refuse to suppress the in-court identification.
Appellant’s final point for reversal is that the trial court erred in admitting testimony regarding glue-sniffing by the appellant. The state’s counsel referred to appellant sniffing glue during the alleged crime in his opening statement and also, he elicited a statement from Donnie Payton of the incident. Both times, appellant’s counsel moved for a mistrial. His argument was based on Ark. Stat. Ann. § 28-1001, Rule 404 (b) (Repl. 1979), which states that evidence of other crimes or acts is inadmissible to show that the defendant acted in conformity therein. He also cites Rule 403, contending that the probative value is substantially outweighed by unfair prejudice to the defendant.
This argument is clearly answered by the case of Young v. State, 269 Ark. 12, 598 S.W.2d 74 (1980) wherein it is held that although the general rule is that evidence of other crimes by the accused, not charged in the indictment and information and not a part of the same transaction, is not admissible at the trial of the accused, evidence of other criminal activity is admissible under the res gestae exception to the general rule to establish the facts and circumstances surrounding the alleged commission of the offense. See also Euton v. State, 270 Ark. 121, 603 S.W.2d 468 (Ark. App. 1980).
Affirmed.
Mayfield, C.J., concurs.
Cooper and Glaze, JJ., dissent. | [
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DOUG MARTIN, Judge.
I,In this one-brief case, appellant Leroy Boje contends that the Faulkner County Circuit Court erred in awarding judgment against him in favor of appellee Abbey Carpet & Floors of Little Rock (Abbey). We find no error and affirm.
Abbey filed suit against Boje on October 29, 2009, alleging that Boje improperly installed carpeting at the Greater Mount Calvary Missionary Baptist Church in Pine Bluff, causing Abbey to have to uninstall the carpet and replace it. As a result of Boje’s alleged breach of contract, Abbey sought damages from Boje in the amount of $9,927.62. Boje answered and subsequently filed a counterclaim, alleging that he discovered, during the course of the installation, that the carpet was defective, but Abbey directed him to complete the installation anyway and assured him he would be paid for the work being performed. Boje’s ^counterclaim contended that, due to Abbey’s insistence on his continuing to lay the defective carpet, he was damaged in the sum of $3,260 for work and expenses expended on the job.
The matter went to trial in Faulkner County Circuit Court on June 2, 2011. Abbey’s first witness was Lucy Hammett, who testified that she placed an order for the carpet at the church in March. The initial order of carpet had a “delamination problem,” so the original contractor removed the carpet and cleaned the floor. Hammett reordered the carpet from Beau-lieu Carpet, but the original installer was not available. Hammett then contacted Boje and hired him to install the new carpet.
After the second installation began, Hammett received word from the project manager that there was a problem with the pattern on the carpet not matching and the seams being visible. Hammett testified that she was asked to go to the church, which she did, but she first called Jim McKeand, a professional carpet inspector, to accompany her. When Hammett and McKeand arrived at the church on May 26, 2009, Hammett could see that the diamond-shaped pattern in the carpet was not matching. Hammett testified that she ended up hiring another individual to remove the carpet and install a different, unpatterned carpet. She introduced an invoice that Abbey sent to Boje totaling $9,927.62, which included the labor to remove the mismatched carpet, the new carpeting and installation materials, McKeand’s inspection, and other items.
Reuben Matthews, a deacon in the church and the church’s contact person with Abbey, testified that he observed part of the installation process. Matthews stated that thejjchurch representatives became unhappy with the carpet because all of the seams were visible, although he conceded that the carpet that was installed in some of the smaller rooms, such as the pastor’s study and other offices, was left in place. Matthews said that Boje was given a chance to repair the seams, but he “just failed.”
Jim McKeand, a professional floor-covering inspector, testified that he inspected the carpet in the church on May 26, 2009. At the time of his inspection, the glue had dried, and McKeand noted that “it is difficult, if not impossible, to try and realign mismatched seams once the glue is dried on the carpet.” He explained that the “tolerance” for the particular carpet being used in the church was an inch and a half for every twelve feet of length, and if the pattern had been outside of the manufacturer’s tolerance, the contractor should have notified the manufacturer before beginning installation of the carpet. It was McKeand’s opinion that the carpet was within the manufacturer’s tolerance but that the installer had not properly matched the pattern during the installation. McKeand also opined that the “bowing” or “skewing” that caused the mismatch of the seams was an installation problem as well.
Abbey then called Boje to testify. Boje stated that the installation of the carpet took nearly a week. When the mismatched seams were called to his attention, Boje said that he returned to the job to try to match the seams, informing Matthews that it would take at least half a day, but Matthews stopped Boje and his workers within half an hour. Boje said that he fixed two portions of two seams, but Matthews stopped him, told him that he was wasting his time, and said that he needed to leave the job until the carpet could be pulled up. Boje |4stated that Anthony Clark, a sales representative for Abbey, asked him if he was ready to start pulling the carpet up, but Boje informed Clark that he had been promised he would be paid if he continued.
Boje explained that he used every tool at his disposal in installing the carpet, including seam stretchers, power stretchers, and knee kickers. He also described stay nails, which are used to align seams in carpeting, but he stated that Anthony Clark removed the stay nails that had been placed in the carpet and reprimanded Boje for using them. Hammett, called on redirect, testified that the day of trial was the first time she had ever heard anything mentioned about stay nails being pulled up.
In his own case in chief, Boje called Ryan Kye, a salesman for Abbey, who testified that Anthony Clark was on-site during the installation and was complaining about the stay nails being used on the job. Kye said that Clark pulled the nails out, saying that the client did not like them. Kye, who was thirty-seven years old and had worked in the carpeting industry since 1992, said that stay nails are commonly used in pattern-match carpets. It was his opinion that the problem with the carpet seams could have been fixed, but the church was not going to accept the carpet “no matter what [Boje did].”
Boje also testified again, describing in some detail the carpet-installation process and discussing the problems he had with the carpet skewing and elongating. Boje stated that, from the start, Matthews did not like the carpet at all. Boje stated that he told Clark that he wanted to be guaranteed that he would be paid, because even though he could have gotten the | ¿pattern issues resolved, the church members were “not liking” the carpet. Boje stated that he and Clark got Lucy Hammett on the phone, and Hammett assured him that he would be paid and instructed him to get the carpet on the floor. Boje, therefore, continued with the installation. When Matthews complained, however, he stopped the job at that time, although he came back the next day and continued working on the installation.
On the fifth day of the job, Boje said that Clark complained about the use of the stay nails. Boje explained to Clark that it was a normal part of the installation project, but Clark then said that it was “lucky that he had pulled the nails before anyone in the church had seen it.” Boje went in the church at that point and observed that the carpet had shrunk back to its original, unstretched position. He said that he could have fixed the problem, but Matthews told him he was wasting his time. Boje said that, at that point, he decided to stop working on the job, but he declined to pull up the carpet because he had not been paid.
Two other witnesses testified for Boje— Shawn Chester and Paul Boje (Leroy Boje’s brother) — and both stated that Matthews was unhappy with the carpet from early on in the job. Paul Boje also stated that, based on his experience, the seams could have been made right and nothing, other than the circumstances of the church being unhappy with the carpet, would otherwise have prevented them from being able to cure any problems.
The circuit court took the case under advisement and issued an order on June 21, 2011, in which the court found that the case came down to a factual question of whether it would have been possible for the carpet to be adjusted and aligned or whether it had to be | r,completely replaced. The court noted that there was testimony to support both parties’ contentions, but the court found that the preponderance of the evidence and credibility supported Abbey’s position. The court placed special emphasis on McKeand’s testimony that it would not have been possible to pull up the glued-down carpet and realign the seams, while noting that Boje’s witnesses consisted of employees and relatives. The court stated that it “simply finds greater weight and credibility with Mr. McKeand’s independent testimony.” Thus, the court found for Abbey on its breach-of-contract claim and awarded $6,184.37 in damages. Boje filed a timely notice of appeal and now urges on appeal that the judgment in favor of Abbey is not supported by the evidence.
In bench trials, the standard of review on appeal is whether the judge’s findings were clearly erroneous or clearly against the preponderance of the evidence. Found. Telecomms., Inc. v. Moe Studio, Inc., 341 Ark. 231, 16 S.W.3d 531 (2000); Jackson v. Pitts, 93 Ark.App. 466, 220 S.W.3d 265 (2005). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, when considering all of the evidence, is left with a definite and firm conviction that a mistake has been committed. Found. Telecomms., supra. This court views the evidence in a light most favorable to the appellee, resolving all inferences in favor |7of the appellee. Id. Disputed facts and determinations of the credibility of witnesses are within the province of the fact-finder. Ford Motor Credit Co. v. Ellison, 334 Ark. 357, 974 S.W.2d 464 (1998).
On appeal, Boje argues that, in reaching its conclusion, the circuit court “placed too much emphasis on the testimony of the expert [witness]” and “ignored other more relevant testimony.” He also complains that his testimony about the removal of the stay nails was ignored. Boje concedes that the circuit court is given the discretion to choose which testimony to believe when there is a conflict, but he urges that, because no witness rebutted his evidence that the stay nails were removed before the glue was dry, the trial court improperly ignored his evidence. In short, his entire argument is premised on the contention that the trial court improperly weighed the credibility of the evidence in such a way that the court’s conclusions were not supported by the testimony.
The appellate courts have repeatedly held, however, that it is the province of the trial court to weigh the evidence and determine the credibility of the witnesses. Jones v. Bourassa, 2011 Ark. App. 369, 383 S.W.3d 888; Cent. Ark Found. Homes, LLC v. Choate, 2011 Ark. App. 260, 383 S.W.3d 418 (Where evidence is presented on both sides of the issue, it is the circuit court’s prerogative to weigh the evidence and resolve conflicts in the proof.). Moreover, the appellate courts do not reverse a finding of fact unless we conclude that the trial court has clearly erred. HRR Ark, Inc. v. River City Contractors, Inc., 350 Ark. 420, 87 S.W.3d 232 (2002). Here, the circuit court acknowledged that there was conflicting evidence | sthat supported both parties’ positions, but the court stated that it gave greater weight to the plaintiffs witnesses in making the factual finding that the carpet could not have been pulled up, realigned, and fixed. This was a matter within the province of the circuit court, and, on the whole, we are unable to determine that the court was clearly wrong.
Affirmed.
VAUGHT, C.J., and BROWN, J., agree.
. Abbey originally sought $9,927.62 in damages. The court denied the other monetary damages requested by Abbey, including the cost of the 200 yards of carpet that was allowed to stay in place in smaller rooms in the church, the cost of McKeand’s inspection, Hammett’s expenses in driving to Pine Bluff, and "floor prep,” finding that there had not been adequate evidence introduced at trial that the additional amounts were directly related to Boje’s installation. | [
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Tom Glaze, Judge.
This is a criminal case in which appellant was convicted of second degree murder. For reversal, appellant advances three arguments.
POINT I
THE COURT ERRED IN PERMITTING EVIDENCE OF THE DEFENDANT’S PRIOR FELONY CON VICTION WHICH WAS MORE THAN TEN YEARS OLD.
The appellant argues that the trial court should have sustained his objection to exclude the following testimony elicited from appellant on cross-examination:
Q. Mr. Hampton, is it not a fact that you could not have legally possessed this weapon on the date in question?
A. True.
Q. Why is that?
A. Because I done ten months in Missouri State Penitentiary in 1969.
Appellant contends this testimony related toa burglary conviction which occurred more than ten years before the present murder charge and was therefore inadmissible under Rule 609 of the Uniform Rules of Evidence. The State argues the testimony elicited from appellant on cross-examination was admissible under Rule 404 (b) to show he illegally possessed a handgun, a fact which bore on appellant’s state of mind the night of the shooting. Rule 404 (b) provides:
(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
This Court previously has pointed out the difficulty in applying Rule 404 (b). Price v. State, 267 Ark. 1172, 599 S.W.2d 394 (Ark. App. 1980), aff’d, 268 Ark. 535, 597 S.W.2d 598 (1980). In Price, we explained our interpretation of the Rule when deciding whether evidence of other offenses should be admitted. We said:
In our view, the rule should be interpreted to exclude evidence of other offenses when its only purpose is to show the accused’s character or some general propensity he might have to commit the particular sort of crime in question. It should not be interpreted to exclude evidence of other offenses when that evidence is probative of the accused’s participation in the particular crime charged. If it is probative of his participation the only remaining question should be whether it is so prejudicial that it should be excluded because the prejudice brought about by exposition of other offenses is not sufficiently balanced by the probative value of the evidence on the facts sought to be proved. See, Rule 403.
267 Ark. at 1176, 599 S.W.2d at 396-97.
In affirming Price, the Arkansas Supreme Court held that Rule 404 (b) clearly permits testimony of other criminal activity “if it has relevancy independent of a mere showing that the defendant is a bad character.” 268 Ark. 535, 538, 597 S.W.2d 598, 599 (1980). The Supreme Court added that once the independent relevancy of “other crimes evidence” is established, that “other crimes evidence” ought to be scrutinized under the substantial prejudice rule of 403, whether or not defendant raises that issue. Id.
In the case at bar, opposing, conflicting testimonies were given that both the appellant and the victim were out to get one another. Testimony was heard that each made threats to the other, each was the aggressor, and each was innocent. There were witnesses who testified that appellant had displayed a pistol and had threatened to kill the victim, both the day of and before the shooting incident. Appellant countered this testimony by claiming that he had a pistol in his truck on the night of the shooting because earlier that day he and his wife had gone to the dump to shoot it.
At trial, appellant relied upon justification as a defense as defined under Ark. Stat. Ann. § 41-507 (Repl. 1977). Consequently, evidence tending to explain his conduct or state of mind was admissible. See Brockwell v. State, 260 Ark. 807, 815, 545 S.W.2d 60, 66 (1976).
The State presented testimony that appellant repeatedly had brandished a revolver and threatened the victim’s life before the shooting. It further showed that after these threats appellant went to the victim’s residence with a pistol conveniently within reach in his truck. As a felon, appellant knew it was unlawful for him to possess a firearm. It is reasonable to believe this fact would have enhanced his awareness or consciousness of having any firearm in his presence. These factors tend to dispel, or at least to diminish, appellant’s contention that a pistol was left inadvertently in his truck because he had been shooting it with his wife earlier in the day. Since he knew it was illegal for him to possess the pistol, it is reasonable to infer that he normally would have had his wife take the pistol, especially since it was purchased by and titled in her name. Because we believe appellant’s knowledgeable, illegal possession of a firearm is probative on the issue of whether his acts created circumstances manifesting extreme indifference to the value of human life and causing the victim’s death, we find the testimony elicited from appellant was admissible under Rule 404 (b).
We also find that the testimony to which appellant objected is not so prejudicial that it should be excluded under Rule 403 of the Uniform Rules of Evidence. The trial judge carefully considered appellant’s objection outside the hearing of the jury. Although he overruled appellant’s objection, the judge offered to issue a limiting instruction if appellant so chose, and he proposed to limit any cross-examination on the subject. After the court ruled, the State framed its question to appellant in such a way that the burglary conviction was neither mentioned nor introduced by the State. On these facts, we are unable to say the probative value of appellant’s testimony was outweighed by its prejudicial effect.
POINT II
THE COURT ERRED IN GRANTING THE STATE’S MOTION IN LIMINE PRECLUDING THE INTRODUCTION OF EVIDENCE OF PRIOR SPECIFIC VIOLENT ACTS OF THE VICTIM FOR THE PURPOSE OF ESTABLISHING WHO WAS THE AGGRESSOR
At trial, appellant proffered the testimony of two witnesses who would have testified that on separate occasions the victim had inflicted injury upon them, and that the victim was the aggressor in each instance. These incidents occurred two and four years prior to the instant shooting. The State moved to exclude any evidence of specific acts of violence by the victim against persons other than the appellant. The State did not object to evidence regarding the victim’s general reputation for violence. We find the court correctly excluded this testimony.
The Supreme Court in Sanders v. State, 245 Ark. 321, 432 S.W.2d 467 (1968), stated the established rule of law that a violent disposition toward others on the part of a victim of homicide cannot be shown by specific acts of aggression and misconduct. See also, Jones v. State, 1 Ark. App. 318, 615 S.W.2d 388 (1981). Here, appellant fully developed his defense of justification by offering evidence concerning the victim’s representation for violence as well as his specific threats toward appellant. The victim’s violent acts directed at the two persons whom the appellant chose to call as witnesses concerned instances totally unrelated to appellant. Additionally, the record reflects that appellant had no knowledge of the specific episodes which took place between the victim and the two proposed witnesses. Under these circumstances, the trial court could properly decide that the proffered testimony was not relevant on the issue of justification. Id.
We note appellant’s reliance on Smith v. State, 273 Ark. 47, 616 S.W.2d 14 (1981), in arguing theadmissibiltyof such testimony, but we find Smith to be clearly distinguishable on its facts. In Smith, the court held the trial court erred when it excluded proffered evidence that one of the victims had shot the defendant on two prior occasions and that both victims had threatened to kill him. These instances clearly involved the defendant — not others. Therefore, Smith does not control because it is not applicable to the facts before us.
POINT III
THE COURT IN DENYING THE MOTION FOR NEW TRIAL BASED UPON IMPROPER CONTACT BY THE STATE WITH THE JURY FOREMAN.
This issue rasied by appellant is devoid of merit. Appellant complains of a conversation between the deputy prosecutor and a juror which took place two days before the trial of the instant case, and involved a criminal case unrelated to appellant’s. During the course of the conversation, the prosecutor informed the juror that the defendant, who was acquitted in the earlier criminal case in question, would have been a youthful offender and could have served as little as one-sixth of any time given. In his argument, appellant speculates that this information imparted by the prosecutor to the juror could have affected the juror’s decision two days later in appellant’s case.
Appellant’s case was never mentioned during the conversation in question nor in any future criminal trial — let alone appellant’s. The trial court found these facts presented no prejudice to appellant’s case, and we agree. These circumstances certainly do not require the application of the presumption of prejudice rule announced in Remmer v. United States, 347 U.S. 227 (1954), since the situation in Remmer involved an alleged improper communication with a sitting juror concerning a matter pending before the jury. i
Affirmed.
In accordance, see Halfacre v. State, 277 Ark. 168, 639 S.W.2d 734 (1982), which was decided after this Court’s opinion was written. | [
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John Charles Earl, Special Judge.
This Appeal involves a condemnation of lands owned by the Appellants, Rest Hills Memorial Park, Inc. and Griffin-Leggett, Inc. (collectively referred to hereinafter as “Rest Hills”). In 1976, Appellee formed Clayton Chapel Sewer Improvement District No. 233 of Pulaski County, Arkansas (hereinafter referred to as “District”). Although Appellants’ lands are not within the District, the Appellee’s sewer lines run across the Appellants’ lands in three easements in order to connect to the sewer treatment plant which serves the sewer district. The Trial Court determined that the easements constituted a total of 1.7 acres taken and that Rest Hills was entitled to $34,494.32, representing the value of this 1.7 acres, with interest thereon at the rate of six percent (6%) per annum from the date of taking. Much of the Trial Court record is devoted to testimony concerning the elevation of lands taken. The Chancellor found that the State Health Department will not allow burials on lands below an elevation of 247' Mean Sea Level (MSL). Of the total lands condemned by the District, .43 acres lie above 247' MSL surface contour and 1.27 acres lie below such elevation. In a cemetery enterprise, land which is suitable for division and sale as individual burial plots is much more valuable to the landowner than land which cannot be used for such purposes. The Chancellor found that the land currently available for burial use had a value of $49,964.62 per acre and the Chancellor applied this value to .43 acres of the condemned lands with surface contour elevations higher than 247' MSL. The remaining 1.27 acres of the condemned property was not viewed as being suitable for burials, and was valued at $5,500.00 per acre.
Appellants have urged that the Chancellor, by failing to value the entire 1.7 condemned acreage as burial property, failed to award damages to the Appellants based upon the highest and best use of their land. Appellants further urge that the Chancellor committed error in the amount of interest allowed on the judgment. We agree.
It has long been the rule that when one’s property is taken under the law of eminent domain, just compensation to the owner is measured by the difference in the value of the land, when put to its highest and best use, immediately prior to the taking and immediately after the taking. Arkansas State Highway Commission v. Maus, 245 Ark. 357, 432 S. W.2d 478 (1968); Myers v. Arkansas State Highway Commission, 238 Ark. 734, 384 S.W.2d 258 (1964); State ex Rel Publicity and Parks Commission v. Earl, 233 Ark. 348, 345 S.W.2d 20 (1961). Further, in determining the highest and best use of the land taken, the Court may consider all uses to which the land is adapted and might be put and may award compensation upon the basis of its most advantageous and valuable use. U.S. v. 620.00 Acres of land, more or less, situate in Marion County, Arkansas, 101 F. Supp. 686 (W.D. Ark. 1952). In determining future uses, the Court may not engage in speculation and conjecture but must be shown with some degree of certainty that the use of the land will change in the not too distant future. Arkansas State Highway Commission v. O & B, Inc., 227 Ark. 739, 301 S.W.2d 5 (1957).
The Chancellor properly found with some degree of certainty that .43 acres of the total 1.7 acres taken could be used for burial purposes in the reasonably near future and should be valued at a rate suitable for burial property. This finding was based upon testimony presented in the Trial Court and reflected in the record that although the .43 acres is not currently used for burial purposes, it is currently suitable for such use. Further, the record reflects that the remaining 1.27 acres taken had been cleared and sodded, had been platted and planned for burials, and had been approved by the proper cemetery authorities for cemetery use.
From a review of the transcript, it seems that both parties agree that the total 1.7 acres taken was intended to be used for burials. The disagreements presented on appeal are: (1) whether the total 1.7 acres could be legally used for burial purposes; and (2) whether some parts of the 1.7 acre area taken would be suitable for burials in the not too distant future, since it lay in varying degrees below 247' MSL.
However, before reaching either of these issues, it must be determined whether 247' MSL refers to the surface of the property or the floor of the grave. The Chancellor found that the .43 acres with an elevation of 247' MSL and above were currently suitable for burial property. Appellee has urged on appeal that the 247' MSL requirement refers to the floor of the grave and not to the surface elevation of the property. However, after reading the transcript of the Trial Court proceedings, it is clear that this elevation referred to the surface contour and the elevation of the surface was the subject to the parties’ arguments below.
It is further noted that Appellee has not questioned the finding that the .43 acres at or about 247' MSL surface elevation is suitable for burials, thus strongly indicating Appellee’s agreement that any lands with surface elevations of 247' MSL and above may be used for burials. If the reference were as Appellees argue on appeal, then surely their appeal would have included, at least, a part of the valuation of the .43 acres.
As regards Appellants’ ability to legally use the entire 1.7 acres for burial purposes, the only impediment seems to be that 1.27 acres is currently below 247' MSL, since the entire tract is currently approved for cemetery use. We find the Appellee’s reference to a letter from the State Health Department unpersuasive as, in our view, it applies to a recommendation for future rules. The record reflects no evidence that the State Health Department, the Corps of Engineers or the necessary authorities or agencies would prohibit raising the level of the 1.27 acres in dispute which are currently below 247' MSL. We find undisputed evidence that of the lands condemned, 1.27 acres below 247'MSL can, in fact, be raised to the 247'level and that such act on the part of the cemetery owner is legally permissible. It also appears from a review of the proceedings below that Appellants are continually raising the surface level of low-lying cemetery lands with excess dirt displaced by burials. Indeed, the Chancellor below recognized this fact and the testimony appears undisputed that it is less expensive for the Appellants to use excess earth in this manner as opposed to paying someone to haul it away.
Appellants rely upon the St. Agnes rule of cemetery appraisal which was set out in St. Agnes Cemetery v. State, 163 N.Y.S.2d 655, 3 N.Y.2d 37 (1957), in which the Court held that if land taken is an integral though unused portion of a well-established cemetery in which there have been no interments and no sale of graves, the property should be appraised on the basis of its value for cemetery purposes if such value can be arrived at without resorting to speculation. Appellants urge that the St. Agnes rule of damages should apply in this particular condemnation where the cemetery is a well-established business, the lands taken are very near lands in which burials have already been made, and the lands taken will be used for burials in the near future.
The cases which follow the St. Agnes rule have held that the condemned portion of a cemetery should be valued as having burial purposes if the land is held by the landowner for definite future cemetery use as a part of an established cemetery enterprise and if the value as burial property can reasonably be arrived at. Mt. Hope Cemetery Association v. State of New York, 203 N.Y.S.2d 415, 11 A.D.2d 303 (1960); State ex rel v. Barbeau, 397 S.W.2d 561 (Missouri, 1965); Graceland Park Cemetery v. City of Omaha, 173 Neb. 608, 114 N.W.2d 29 (1962); Cemeterio Buxeda v. People of Puerto Rico, 196 F.2d 177 (1st Cir., 1952). The St. Agnes method of cemetery appraisal is adopted as the general rule in condemnation of cemetery property in Arkansas.
In arguing the Chancellor correctly refused to value the 1.27 acres as burial property, Appellee District cites Laureldale Cemetery Company v. Reading Company, 303 Pa. 315, 154 A. 372 (1931), which is an exception to the general rule, properly applied, when valuation of property for future cemetery use is too speculative. Laureldale involved a valuation of condemned property based upon non-cemetery use since the part taken was not being used for burials, was some 600 feet from existing graves and was not certain to be used for burials in the near future. The Laureldale Cemetery was only three and one-half years old at the time of taking. The Court in Laureldale held that it was too speculative to attempt to place the higher burial value on the condemned portion of the cemetery when the cemetery was so new as to make a projection of the future sales of individual grave sites uncertain. We find the Laureldale theory was properly applied in Diocese of Buffalo v. State of New York, 300 N. Y.S.2d 328, 24 N. Y.2d 320 (1969), wherein that Court held that where a cemetery consists of so much land that the portion retained after the taking is so large that it would be 88 years before the property would be fully utilized for gravesites that the owner would be better advised to put the land to another use, then the land should be appraised for non-cemetery purposes.
In relying on the Laureldale theory, Appellee District has pointed out some facts that must be analyzed and resolved here. After the taking Appellants are left with 108.566 acres of the 110.266 owned by them and approximately 61.02 acres may never be used for burials and may never yield income. This fact, on its face, would seem to impose the Laureldale rule of evaluation. However, the record reflects undisputed testimony that 61.016 acres of the land retained (none of which embraces the condemned 1.7 acres) is swamp land known as Trammel Lake. The U.S. Corps of Engineers prohibits the filling of this 61.016 acres (which would be necessary in order to be used for burial purposes) because it falls within a federally protected area. The Trial Court stated in its Findings of Fact and Conclusions of Law that the Federal Wetland Act prohibits raising the level of the 60.016 acres located in this swamp and that it could not be used for burials. Although Appellants hold title to Trammel Lake it cannot be used for burials and is not considered by them a part of the cemetery proper. Thus, these facts do not support Appellee’s contention that Laureldale is applicable in this case.
The record reflects that all of the area condemned by the District is outside the swamp area and is presently available for use as burial property with the exception of 1.27 acres which lie below 247' MSL elevation. The record further reflects that approximately 1800 cubic yards of dirt are displaced each year by burials and that this excess is presently carried to low lying portions of the cemetery. It is easily seen that this practice results in raising the elevation of certain lands in the cemetery to a level which would then be suitable for burials. Appellee’s brief reflects that to raise the area of the easements by 4 feet, to 247' MSL (some of which is apparently only a few inches below that level) would require 8,382 yards of fill. Given 1800 yards of fill a year the testimony reflects is presently being removed from new graves, a basic calculation would show that this 1.27 acres could be totally raised to the 247' MSL in 4 years and 8 months, based upon the past and current rate of burials within the Appellants’ cemetery. Clearly, the St. Agnes method of valuation would apply to the Appellants’ situation where all of the lands condemned would be available for burial sites in this short period of time. This Court agrees with the Court in St. Agnes when it said that the question to be answered is “what has the owner lost? not, what has the taker gained?”
The Chancellor, in his Findings of Fact and Conclusions of Law, recognized the possibility that the lands below 247' MSL elevation could be raised to a higher level and be suitable for burials; however, he went on to say that “the award for such a taking must be based upon present conditions”. In view of the Court’s finding that lands taken below 247' MSL could be raised and the undisputed testimony of the Appellants in the record that such would be done, it was error for the trial court to award a value of $49,964.62 per acre to .43 acres taken and $5,500.00 per acre for the remaining 1.27 acres taken. An award of damages for land taken may be based upon prospective utilization of the land if such proposed use is fairly certain and if the land can be valued as such without resorting to speculation. Arkansas State Highway Commission v. O & B, Inc., supra; U.S. v. 620.00 Acres of Land, More or Less, supra; Arkansas State Highway Commission v. Watkins, supra. Based upon the record and the Chancellor’s findings that the lands condemned are part of an established cemetery enterprise and, although not currently used for burial purposes, will be suitable for such use, the highest and best use of all the land condemned is for cemetery purposes and thus an award must be based upon that use. We find, therefore, that the entire 1.7 acres taken by the Appellee District should be valued as burial property and that the Appellants are entitled to $49,964.62 per acre for the entire 1.7 acres condemned by the Appellee.
The second issue raised on this appeal pertains to the proper rate of interest on a judgment for damages in condemnation actions.
The original decree was signed by the Chancellor on May 29,1981, and contained no provision for interest on the award. Appellants then filed a Motion for an Amendment of the Decree seeking interest at the rate of Ten Percent (10%) from the date of taking. On June 24, 1981, the Chancellor amended the May 29,1981, decree to provide for interest from the date of taking at Six Percent (6%) per annum.
The Chancellor properly found that: (1) Appellants were entitled to interest on the full award from the date of taking which was the date of the Order of Entry; and, (2) if the landowner does not have the use of the money during this time, to deny him interest would be to deny him just compensation, Housing Authority of the City of Little Rock v. Rochelle, 249 Ark. 524, 459 S.W.2d 794 (1970). The question now before us is what rate of interest that award shall bear from the date of taking. Ark. Stat. Ann. § 29-124 provides “shall be allowed to receive interest at the rate of Ten Percent (10%) per annum on any judgment”, (emphasis added) This language is mandatory barring discretionary reduction by the Trial Court. Appellee urges that prejudgment interest is limited by Ark. Const. Art. 19, Sec. 15 to 6% per annum. We agree. Further, Appellee urges that it is within the Chancellor’s discretion, according to Ark. Stat. Ann. § 29-124, to also reduce postjudgment interest to 6%. With this we also agree. Thus, we are squarely presented with the issue of whether the Trial Court actually exercised its discretion to override the mandatory language of this statute.
In stating his reasons for providing for 6% interest, the Chancellor below stated:
“The only reason why I am providing 6% is that I am attempting to follow the Highway Department’s statute, although I am well aware that it does not apply. It is the only one I know of that has any provision for interest on the award.”
A similar occurrence is reported in a 1976 case, Dunn Roofing Company v. Brimer, 259 Ark. 855, 537 S.W.2d 164 (1976). In that case, counsel submitted a precedent for judgment reciting a 10% rate. The Court, in its opinion, stated:
“For more than a century, the interest rate upon judgments was 6%, but in 1975, the legislature increased the rate to 10%, with a proviso that the Trial Judge, in his discretion, may reduce the rate to not less than 6%. Ark. Stat. Ann. § 29-124. Here counsel submitted a precedent for judgment reciting a 10% rate. The Judge reduced it to 6% explaining in a letter that he understood the legal rate to be 6% in the absence of a contract for a higher rate. No other explanation of the reduction appears in the record. Hence, it does not appear that the Court exercised its discretion with knowledge of the 1975 statute. Consequently, we think that the rate should be fixed at 10%, as the statute provides, not because the Trial Judge abused his discretion, but because he was not apparently aware of the leeway open to him.” 259 Ark. 855 at page 857.
In the instant case, it clearly appears that the Chancellor was not aware that he must affirmatively exercise his discretion to override the mandatory provision for 10% interest in Ark. Stat. Ann. § 29-124 which applies to all judgments except those involving condemnation by the State Highway Department. Arkansas State Highway Commission v. Scott, 264 Ark. 397, 571 S.W.2d 607 (1978). To follow an inapplicable statute or do the “logical thing” is not sufficient in the absence of an indication that an exercise of discretion was the basis for that act. We do not find any place in the record of the proceedings where the Trial Court truly exercised its discretion to override the mandatory language of the statute. We therefore hold that Appellant’s judgment should bear interest at the rate of 6% from the date of the Order of Entry to the time of judgment and at the rate of Ten Percent (10%) from the date of the lower court’s judgment until satisfaction.
This Court will not remand Chancery causes for further proceedings and proof when it can plainly see from the record what the rights and equities of the parties are, but will render such a decree as ought to have been rendered below. Walt Bennett Ford, Inc. v. Pulaski County Special School District, 274 Ark. 208, 624 S.W.2d 426 (1981); Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979).
We therefore render such decree as ought to have been rendered by the Chancellor below on May 29,1981. In doing so, we reverse in part and affirm in part the Chancellor’s decision, and hold that the Appellants are entitled to judgment in the sum of $84,939.85 with interest thereon at the rate of 6% per annum from the date of the Order of Entry (January 9, 1980) to the date of judgment and interest at the rate of 10% per annum from the date of judgment (May 29, 1981) until satisfied.
Mayfield, C.J., and Cracraft, J., dissent.
Cooper, J., not participating. | [
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Lawson Cloninger, Judge.
Appellant received a jury sentence of thirty years imprisonment on a burglary charge and fifteen years on a charge of theft of property, the sentences to run concurrently. His only point for reversal is that the trial court erred in forcing appellant to stand trial in the prison uniform of the Pulaski County Jail, an orange jumpsuit. We do not find merit in appellant’s argument.
In chambers before the trial, the trial judge discussed with appellant the possibility of appellant’s wearing the same clothes he wore on the day of his arrest. The judge stated that appellant had told the bailiff that he didn’t have any other clothes and didn’t want any. When asked by the judge whether he wanted to wear the clothes he wore to jail or wear the orange jumpsuit, appellant replied, “wear the jumpsuit.” At that point appellant’s attorney stated, “For the record, we object, Your Honor.”
It is not clear from the record whether the orange jumpsuit was distinctive as prison clothing. In chambers, the judge advised appellant and his attorney that the judge would advise the jury that the reason appellant was wearing the orange jumpsuit was that appellant had been in jail since his arrest and had no other clothing he wished to wear. At trial, the judge did so advise the jury, and in addition stated that the orange jumpsuit was the regular uniform of the Pulaski County Jail. The judge also told the jury that appellant’s attire was not to be considered as being indicative in any way of guilt. No objection to the trial judge’s statement to the jury was made by appellant.
The bailiff reported that the clothes appellant wore at the time of his arrest were in the jail, but were muddy and torn. Appellant was arraigned on the charges on May 27, 1981, at which time an attorney was appointed to defend him. He remained in jail until his trial on November 3,1981, and there is no evidence that appellant or his attorney made any effort to have appellant’s clothes cleaned and mended or to obtain other clothing. Significantly, there was no request for a continuance for the purpose of obtaining other clothing, and only a formal objection was made to the trial court’s action.
In Miller v. State, 249 Ark. 3, 457 S.W.2d 848 (1970), the Arkansas Supreme Court adopted the rule that absent a waiver, the accused should not be forced to trial in prison garb. It cited the basic rule which is summarized in 21 Am. Jur. 2d Criminal Law § 239, which states:
Since the defendant, pending and during the trial, is still presumed innocent, he is entitled to be brought before the court with the appearance, dignity, and self-respect of a free and innocent man, except as the necessary safety and decorum of the court may otherwise require. He is therefore entitled to wear civilian clothes rather than prison clothing at his trial. It is improper to bring him into the presence of the jury which is to try him, or the venire from which his trial jury will be drawn, clothed as a convict.
In Estelle v. Williams, 425 U.S. 501, (1976), the United States Supreme Court held that a criminal defendant had constitutional rights under the sixth and fourteenth amendments which were violated when he was compelled to wear identifiable prison clothing at his trial. The court stressed that such attire must be distinctive and identifiable.
The rule in Estelle, supra, was adopted by the Arkansas Supreme Court in Holloway, Welch and Campbell v. State, 260 Ark. 250, 539 S. W.2d 435 (1976). In that case, however, it was found that appellants’ argument had no merit because they rejected twice the trial court’s offer to allow them to change clothes. The trial court gave appellants this opportunity before the trial began and before the actual selection of a jury. Hence, it was held that appellants were deemed to have waived their right. In Holloway the record was not clear as to whether the prison garb was distinctive, it being shown only that the attire was matching blue trousers and shirts.
In Estelle v. Williams, supra, the Court stated:
... the courts have refused to embrace a mechanical rule vitiating any conviction, regardless of the circumstances, where the accused appeared before the jury in prison garb. Instead, they have recognized that the particular evil proscribed is compelling a defendant, against his will, to be tried in jail attire. The reason for this judicial focus upon compulsion is simple; instances frequently arise where a defendant prefers to stand trial before his peers in prison garments. The cases show, for example, that it is not an uncommon defense tactic to produce the defendant in jail clothes in the hope of eliciting sympathy from the jury.
Nothing in the record of this case warrants a conclusion that appellant was compelled, against his will, to stand trial in prison attire, or that the trial judge would not have granted a continuance for the purpose of obtaining other clothing if a request had been made. We hold that under the circumstances of this case, appellant waived his right to be tried in civilian clothing.
Affirmed.
Glaze and Cooper, JJ., concur. | [
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George K. Cracraft, Judge.
David Honor Johnson, Jr. appeals his conviction of possession of a controlled substance with intent to deliver and theft of property having a value of less than $100, contending that the evidence was not sufficient to sustain the convictions. We do not agree.
He first contends that the State failed to prove that Meperidine, which he was charged with possessing, was a controlled substance. As originally enacted the Controlled Substances Act listed and scheduled the specific drugs which were prohibited and delegated authority to the “Coordinator” to add, delete or reschedule any drugs listed in the original enactment if he found them to meet the statutory criteria. Ark. Stat. Ann. § 82-2602 (Repl. 1976). By 1979 amendments, codified as Ark. Stat. Ann. §§ 82-2601 (x) and 82-2602 (a) the responsibility originally vested in the Coordinator became vested in the “Commissioner,” i.e. the Director of the Arkansas Department of Health. Revisions of the schedules are required to be made in accordance with the Administrative Procedures Act. Appellant argues that since Meperidine is not listed in the original act and the State did not introduce a revised schedule prepared by the Department of Health at the trial, he could not be convicted of possession. At the trial of the case the question of whether Meperidine was a controlled substance was never raised. Both parties tried the case on the theory that it was a controlled substance and the jury was so instructed. The question has been raised here for the first time on appeal.
Appellant contends, however, that failure of the State to show at trial that Meperidine was listed in the Controlled Substances Act is a jurisdictional matter that can be raised at any time. White v. State, 260 Ark. 561, 538 S.W.2d 550 (1976). White does so hold. However, White was decided when the statute itself scheduled prohibited substances. In White the Supreme Court found from the statute itself that the substance for which the defendant had been convicted of possessing was not listed as a prohibited substance and reversed his conviction. In the case at bar, although the State did not furnish the trial court copies of the Board of Health schedule, it has attached to its brief a copy of a “Revised Schedule of Controlled Substances” promulgated by the Department of Health pursuant to Ark. Stat. Ann. § 82-2614.3 (Supp. 1981) and effective March 1, 1980. That schedule is on file in the office of the Secretary of State and bears the certification of the Director of the Arkansas Department of Health attesting that it was promulgated pursuant to the Arkansas Administrative Procedures Act. It specifically lists Meperidine as a controlled substance under Schedule II, as alleged in the information on which appellant was tried, convicted and sentenced.
Appellant contends that as this regulation was not tendered for judicial notice or otherwise proved in the trial court we are required to reverse his conviction on jurisdictional grounds. It is not necessary to introduce evidence of statutes in this state. The court judicially knows them. Blythe v. Byrd, 251 Ark. 363, 472 S.W.2d 717 (1971). Nor is it necessary to introduce evidence of regulations of the State Health Department promulgated pursuant to statutory authorization. Courts take judicial notice of such rules and regulations of boards and agencies which are adopted pursuant to law. State v. Martin and Lipe, 134 Ark. 420, 204 S.W. 622 (1918). Seubold v. Ft. Smith Special School District, 218 Ark. 560, 237 S.W.2d 884 (1951). As the regulation listing Meperidine as a Schedule II controlled substance was a matter within the judicial knowledge of the trial court it was not error for him to exercise the jurisdiction conferred by the regulation. On appellate review this court takes similar note of such regulations. Seubold, supra. We find no merit in this contention.
The appellant next contends that the evidence was insufficient to support the findings that he possessed the controlled substance or that he intended to deliver it in exchange for value. We do not agree. On appellate review of a criminal conviction this court must view the evidence presented in the light most favorable to the State and will affirm a jury verdict if there is any substantial evidence to support it. A recital of those facts most favorable to the State leads us to the conclusion that there was more than substantial evidence to support the verdict of the jury.
On February 16, 1981 Mary Ellen Lamb, Assistant Director of Pharmacy Service at St. Vincent Infirmary, discovered that there were 100 units of Meperidine missing from a shipment received from Wyeth Laboratories. She stated that Meperidine is a Schedule II controlled substance and the the missing drugs had a value of $450. No objection was made to either statement. Officer James Step of the State Drug Enforcement Unit testified that as a result of Ms. Lamb’s call he maintained a surveillance and first saw appellant when he came out of St. Vincent Infirmary during the noon hour. Appellant got in his automobile, drove to the back door of St. Vincent Infirmary and re-entered the building. He then returned to his car. The officers followed him to the McDermott Elementary School parking lot where Carolyn Brown got into appellant’s car with him. A short time later she left it carrying a brown garbage sack which she put into her car which was parked nearby. She had not carried the sack when she entered appellant’s car but had it when she exited.
The officers followed Ms. Brown to a parking lot at the Doctors Building, confronted her and seized the bag, which contained ten boxes of Meperidine from Wyeth Laboratories in a plastic outer wrapper. The State laboratory technician confirmed that the contents of the garbage bag was Meperi-dine. An expert testified that he found appellant’s fingerprints on one of the plastic wrappers. Ms. Brown testified that when she met appellant at the school he asked her to keep the package for him. He had the bag in his car when he arrived at the school and did not tell her what the contents were but asked her to bring it to him later at the home of a mutual friend. After they picked up Ms. Brown and the bag the police directed her to call the appellant at the friend’s home and tell him that she would deliver the package to him at a specified street corner. When appellant arrived at the designated corner he was taken into custody.
Appellant testified that he was a shipping clerk at St. Vincent Infirmary and received merchandise as it arrived on trucks and routed it to the proper departments in the hospital. He was not permitted to handle narcotics unless their cartons were damaged. He admitted that he gave the garbage bag to Ms. Brown but said that it contained two dozen lemons which he had placed in his car when he left the hospital. He said he was not a Meperidine user and never had been. The officers testified that the bag contained 100 doses of Meperidine, the same amount found missing at the hospital. There was nothing to suggest that the bag that the appellant carried to his car and gave to Ms. Brown was not the same bag seized by the officers later that afternoon.
The appellant argues that Ms. Brown must be considered an accomplice and that her testimony was not sufficiently corroborated. When the State relies on testimony of an accomplice to support a conviction that testimony must be corroborated by other evidence which tends to connect the accused with the commission of the offense. It is not necessary that the evidence be sufficient to sustain the conviction but the evidence must, independent from that of the accomplice, tend to a substantial degree to connect the defendant with the commission of the crime. Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982); King v. State, 254 Ark. 509, 494 S.W.2d 476 (1973); Brewer v. State, 271 Ark. 810, 611 S.W.2d 179 (1981). Appellant himself admitted giving her the bag he removed from St. Vincent Infirmary. His fingerprint was found on one of the bags of the controlled substance. The police officers testified that they saw the defendant with Ms. Brown at the times and places she claimed to have been with him and saw her enter his car without the bag and leave with it in her hands. The testimony that she was to deliver it later at a friend’s house was corroborated by her telephone call to him at that friend’s house and his agreeing to meet her at a specified corner to redeliver the package. Defendant’s own testimony corroborated that of Ms. Brown. While it appears that a large part of the evidence was circumstantial, this does not mean that the evidence was not substantial. Rhodes v. State, supra. Whether one is an accomplice is usually a mixed question of law and fact, and the finding of a j ury as to whether the witness is an accomplice is binding unless the evidence shows conclusively that the witness was an accomplice. Cate v. State, 270 Ark. 972, 606 S.W.2d 764 (1980). The jury was properly instructed that if they found that Ms. Brown was an accomplice the appellant could not be convicted on her testimony alone unless they found that it was corroborated by other evidence tending to connect David Honor Johnson with the commission of the offense and that the sufficiency of the corroborative evidence was for the jury to determine. We cannot find that the verdict is not supported by substantial evidence.
Appellant next contends that the State failed to prove the requisite intent to deliver the drugs in exchange for value. He testified that he had not used and would not use Meperidine. It would therefore be obvious to the jury that he was not in possession of it for personal use. The court gave to the jury AMCI approved Instruction No. 3307, which states that the quantity of the substance, which they found beyond a reasonable doubt to have been possessed by the defendant, is evidence which they may consider along with all other facts and circumstances in determining the purpose or intent for which the substance was possessed. Intent can seldom be proved by direct evidence and must be inferred from facts and circumstances. It is a matter for the jury to determine and an inference to be drawn by the jury from other facts and circumstances shown by the evidence. Wrather v. State, 1 Ark. App. 55, 613 S.W.2d 601 (1981); Smith v. State, 264 Ark. 874, 575 S.W.2d 677 (1979). This was a permissible instruction as Ark. Stat. Ann. § 82-2617 (4) (d) provides for a rebuttable presumption which arises from proof of possession of more than 2 grams of Pethidine. According to the Board of Health schedule Meperidine is a form of Pethidine.
The appellant also questions the sufficiency of the evidence with regard to his conviction of theft of property valued at less than $100. We likewise find no merit in this contention. The testimony of Ms. Lamb clearly establishes that 100 units of the substance were taken from a shipment at St. Vincent Infirmary. The testimony of Ms. Brown, corroborated by another witness, establishes that the appellant was in possession of the recently stolen goods when he delivered them to her for safekeeping. Proof of possession of recently stolen goods is sufficient evidence to sustain a conviction for theft. Paladino v. State, 2 Ark. App. 234, 619 S.W.2d 693 (1981).
We find no error and affirm. | [
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Lawson Cloninger, Judge.
A decision of the Alcoholic Beverage Control Board denied the application of appellants, Mitchell Johnson and Mildred Mann Griffin, d/b/a Dalark Package Store, for a retail liquor and beer permit to be located on Highway 7 near the Dalark community in Dallas County. The decision of the Board was affirmed by the Circuit Court of Dallas County.
For reversal, appellants contend that the Board’s decision is not supported by substantial evidence and was arbitrary, capricious and an abuse of discretion. We find no merit to appellants’ contention and we affirm.
The ABC Board Regulations, § 1.32, provides that no permit shall be issued for the following premises:
(3) Any premise for which, in the judgment of the Director, adequate police protection is not available due to the remoteness of the location of the premises;
(4) Any premise for which the issuance of a permit would not in the judgment of the Director, promote the public convenience and advantage. . . .
In this case the relevant portion of the Board’s findings was as follows:
2. That the prosecuting attorney for the Thirteenth Judicial Circuit, Robert Laney, objected to this application stating that there was no law enforcement protection in the area.
3. That testimony revealed that the chief market area for an outlet at the proposed location would be the Arkadelphia area and testimony also revealed that the highway between Dalark and Arkadelphia is narrow and treacherous and it is found that it would be opposed to the public safety and welfare to issue a permit at this location.
4. It is further found that an outlet at this location would create law enforcement problems both for Dallas County and Clark County by virtue of the fact that Dalark is in a rural area and is not regularly patrolled by the state police and sheriff’s offices of the two respective counties.
5. That Dalark has a population of approximately 150 people and there is no sufficient public need for a retail liquor outlet at this location.
It is concluded from the above and foregoing findings that it would not be to the convenience and advantage of the public to issue the applied-for permits.
The ABC Board has broad discretionary power to “... determine whether public convenience and advantage will be promoted by issuing such permits . . Ark. Stat. Ann. § 48-301 (Repl. 1977), and a decision of the Board will be affirmed if supported by substantial evidence and if it is not arbitrary, capricious or an abuse of discretion. Ark. Stat. Ann. § 5-713 (Supp. 1981).
Appellants testified that the proposed liquor and beer outlet is designed to serve 3,000 residents who live in the western half of Dallas County, but they made no further effort to show that the public convenience and advantage would be promoted by the issuance of the permit. Dalark community is located on the county line between Dallas and Clark Counties, and the parties recognize that the market area for the proposed outlet would include part of Clark County, which has voted by local option to remain a dry county.
The objection to the granting of the permit registered by the prosecuting attorney for Dallas County on the grounds that there was inadequate law enforcement protection in the area of Dalark is supported by the evidence. Testimony indicated that patrols of the Dallas County Sheriff’s Department were infrequent, no more than once a week, and that the state police were in the area infrequently, perhaps not seen for a month at a time.
Evidence also indicated that 4,600 students attend Ouachita Baptist University and Henderson State University in Arkadelphia, only twelve miles from Dalark, and that the highway between Arkadelphia and Dalark is narrow and treacherous. A majority of those college students are under the age of 21, the legal age for purchasing alcoholic beverages, and that fact would dictate the need for regular police patrols. The remoteness of the area is an issue in this case as it was in Copeland v. Alcoholic Beverage Control Board, 4 Ark. App. 143, 628 S.W.2d 588 (1982).
We hold that there is substantial evidence to support the decision of the Board, and that there is no showing of an abuse of discretion.
Affirmed.
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Melvin Mayfield, Chief Judge.
This is an appeal from a non-jury trial in circuit court. The parties made an oral agreement for appellants to lease two rooms for one year in a building owned by appellees. The consideration for the agreement was that appellants would make certain improvements to the building. Appellants moved office furniture andfequipment into the two rooms and opened a real estate office. About three months later, the appellees told appellants that the terms of the lease had been violated and that the lease was cancelled. When appellants left the building at the end of the day, appellees changed the locks and locked appellants out.
Separate and apart from the lease, appellants loaned appellees a forklift for use in lifting material to the roof of a house which appellees were either building or repairing.
At the time of trial appellants had removed their property from the building and had regained possession of their forklift. The trial court found that the lease was unlawfully terminated and awarded appellants damages in the amount of $ 1,157.88 for labor, expenses, and damages to the property left in the building. The court found that the loan of the forklift was a gratuitous bailment, that appellees were obligated to return the machine upon demand, and that they breached that obligation. Appellants were given damages in the amount of $325.00 for the detention of the forklift and $551.91 for physical damage which occurred to it while in appellees’ possession. The court also awarded appellants $500.00 as punitive damages.
In this appeal the appellants question the sufficiency of the $325.00 allowed as damages for detention of the forklift. To determine how the trial judge arrived at this figure we note there was evidence that appellees got the forklift about the middle of January and that appellee Jack Gladden testified he used it “a little bit the latter part of January by putting up lumber on top of my building.” He also said he used it “around the first part of February” and testified he used it a total of about five hours. After that he moved it back up the “holler” and got it out of sight of the public.
Shortly after appellants were “locked out” the appellant Bob White wrote Gladden that he was being billed “my standard rental rate of $65.00 per day for each day you maintain possession of said forklift.” The court found that this amount constituted a reasonable rate for rent of the machine and said since it was clear the appellees had used it about five hours the appellants should have $325.00 as damages for that use. While the court did not spell it out specifically, it is clear that the evidence would support the finding that the forklift was used by appellees a part of five different days and $65.00 for each day would explain the sum of $325.00. However, since the appellees had possession of the forklift for about 13 months, it is the appellants’ contention that they were entitled to $65.00 per day for the entire 13-month period.
The appellants cite Cullin-McCurdy Construction Co. v. Vulcan Iron Works, 93 Ark. 342, 124 S.W. 1023 (1910), as authority for their contention that they are entitled to rental value during the entire period the machine was detained by appellees. The appellees do not disagree that the value of the use of the property during detention is a proper measure of damage but they say that in the above cited case the party detaining the equipment made full use of it each and every day during the period of detention.
We think this is an important distinction to be made in this case. As both sides point out, the measure of damages involved has not been litigated recently but in an older treatise, Wells, Law on Replevin, § 579 (2d ed. 1907), it is stated that just compensation for the detention of property which has a usable value will, in many cases, be the reasonable value of that use. Footnote 2, however, contains this statement: “In the case of machinery which wears in using, the damages for detention are reckoned at the value of the use, less the damage which would result from wear in use.” The case of Peerless Manufacturing Co. v. Gates, 61 Minn. 124, 63 N.W. 260 (1895), is cited in support of that statement. That case says:
[T]he court charged the jury, in substance, that the measure of damage for such detention is the fair rental value of the property during the time it is so detained. While this is the correct rule of damages in many cases, it is not in the case of detention of an article which wears out as rapidly by use as does a threshing machine. It does not appear that the plaintiff used the machine while it so detained it. If it did so appear, the rule laid down would be correct. But, for all that appears, the machine may have been carefully housed and stored during all of this time, and subject to no wear or tear, except such deterioration as would result from keeping it over, properly stored. It seems to us that, under the facts of this case, the correct rule is, what is the fair rental value of the machine, less the damage which would result to it from the extra wear and tear caused by its use?
The Peerless case was cited in Puckett v. Hopkins, 206 P. 422 (Mont. 1922), where the court said, “The rule that the net usable value may be recovered applies only to a cause involving personal property the use of which does not lessen its value materially.”
And in McCormick, Handbook on the Law of Damages, § 125 (1935), it is said, “In assessing usable value, it is the net value that is sought, and, if the property was idle during detention and would have been subjected to wear and tear by use, an allowance for this should be made.” The case cited in support of that statement is Armstrong & Latta v. City of Philadelphia, 249 Pa. 39, 94 A. 455 (1915), which states, “If defendant did not use the property, the deterioration which it would have suffered by use must be deducted from the value of the use.”
In the instant case, the only evidence in the record as to the rental value of the forklift is that of appellant Bob White. At his rate of $65.00 per day, appellants would receive more than $23,725.00 as rental value for the 13 months the appellees had possession of the forklift. Appellant White testified the forklift was a used one worth $ 16,000.00 when he let appellees have it. Under that testimony appellants would recover their $16,000.00 investment and make a profit of $7,725.00 in a period of 13 months. And if the forklift was worth only $9,000.00, the price for which appellant admitted he offered it at an auction sale about a month before he loaned it to appellees, the appellants could recover their investment and make a profit of $14,725.00 in the 13-month period.
It was the appellants’ burden to prove their damages. Standridge v. City of Hot Springs, 271 Ark. 754, 610 S.W.2d 574 (1981); Christmas v. Raley, 260 Ark. 150, 539 S.W.2d 405 (1976). The trial judge gave appellants $65.00 per day for each of the five days which he found that appellees used the forklift but did not award any damages for the other days that the machine was in their possession but not actually used by them. As the fact finder, he could, of course, find that a rental of $65.00 per day was a reasonable rate for the forklift during the time it was in actual use and deteriorating in value because of that use. It is equally true that he could find such a rate to be greatly excessive for rental of the machine during the time it was not being used. Armstrong & Latta v. City of Philadelpha, supra, also held that whether the property involved could have been rented continuously during the period of detention would materially affect the amount of damages sustained and that the amount of damages should bear some reasonable proportion to the value of the property detained. Since the appellants produced no evidence from which the court could determine the amount of just compensation which they should receive for the period the forklift was not in use, we think the court was correct in awarding damages for only the days it was used.
It is true that the court did not make a specific finding setting out the reason he awarded damages for only the days the machine was in actual use but we do not reverse the trial judge if his decision is right even if his reasoning is wrong. Miller v. Dyer, 243 Ark. 981, 423 S.W.2d 275 (1968); Southern Farm Bureau Casualty Ins. Co. v. Reed, 231 Ark. 759, 332 S.W.2d 615 (1960).
We affirm the decision of the trial judge in this case because, under the law, there is evidence to support his decision and under Civil Procedure Rule 52 (a) it is our duty to affirm his decision if it is not clearly against the preponderance of the evidence.
Affirmed.
Cooper, Corbin, and Glaze, JJ., dissent. | [
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Donald L. Corbin, Judge.
This is a well-briefed case of first impression. Claimant, Charles Walker, appeals an order by the full Commission which denied his motion for rehearing on the basis of newly discovered evidence. We affirm.
This claim arose out of a claim for medical benefits and workers’ compensation disability benefits related to an alleged injury to appellant by exposure to pesticides. In an opinion filed September 26, 1979, Administrative Law Judge Newbern Chambers found that appellant had failed to prove, by a preponderance of the evidence, that his disability arose out of and in the course of his employment. Appellant appealed to the full Commission and the opinion of the Administrative Law Judge was affirmed on appeal. Thereafter, appellant filed a petition for rehearing on the ground that there had been newly discovered evidence. There was some question as to whether appellant asked for a hearing on the petition for a rehearing, but, in any event, the full Commission wrote a letter denying the petition for rehearing and stated that it was possible that the motion would be more properly filed as a motion to remand from the Court of Appeals. The implication in the letter of the full Commission was that the full Commission did not base its decision on the merits of the petition for rehearing, but rather, felt as if they had no jurisdiction to entertain a petition for rehearing. This matter was thereupon appealed to the Court of Appeals and the case was reversed and remanded to the full Commission so that the full Commission could take appropriate steps to decide the issues raised by the petition for rehearing on the merits.
The full Commission entered an order on February 18, 1981, remanding this case to an Administrative Law Judge for the purpose of conducting a hearing on the merits of appellant’s motion for rehearing. The order of the full Commission limited the question to be decided in this particular hearing to that of newly discovered evidence. The Commission in its order described the purpose of this hearing as follows:
Without unduly limiting claimant in his presentation of evidence at the hearing on his motion, or ruling out any pertinent matters, certainly the evidence to be adduced at the hearing on the motion should go to the central question of whether such evidence is indeed newly discovered as that term is generally understood in a jurisprudential sense. This inquiry will invoke of course the question, among others, of whether the evidence alleged to be newly discovered could, or should with reasonable diligence, have been discovered and presented at an earlier juncture of the proceeding.
A hearing was held on April 2, 1981, and thereafter the deposition of Dr. Dale Peters was taken on April 30,1981, the deposition of Harold King was taken on April 29,1981, and the deposition of Dr. William J. Rea was taken on May 22, 1981. The entire record prior to the hearing in April of 1981 was made a part of the record for this particular hearing. The Administrative Law Judge rendered an opinion on September 4, 1981, finding that:
The claimant has failed to prove, by a preponderance of the evidence, that the evidence alleged to be newly discovered is, in fact, newly discovered evidence as that term is generally understood in a jurisprudential sense. The evidence which the claimant now seeks to introduce could or should have been available at an earlier point had the claimant exercised reasonable diligence. The evidence which the claimant seeks to present upon rehearing is material evidence, but untimely.
Earlier in this case, a hearing was held on June 20,1979, where medical reports by Dr. W. R. Keadle, a general practitioner in Glenwood, Arkansas, and Dr. Bruce Waldon, an Assistant Professor of Medicine at the University of Arkansas for Medical Sciences, were introduced into evidence. These physicians related the symptoms of claimant to his exposure to pesticides.
Thereafter, Dr. Waldon’s deposition was taken and he reversed his original position. He testified that there was no objective evidence from the test he performed on Mr. Walker that chemicals in the pesticides caused claimant’s problem. He found no causal relationship between the pesticides and Mr. Walker’s complaints. He testified that his opinion was further substantiated by the fact that any problems caused by the pesticides would have dissipated within days or at most weeks after his last exposure. Dr. Keadle, after reviewing Dr. Waldon’s deposition, could not reach an opinion one way or another as to whether Mr. Walker’s complaint was related to pesticide exposure.
Claimant was denied benefits by the Administrative Law Judge. The case was eventually submitted to the full Commission on November 27, 1979. On January 10, 1980, the full Commission denied Mr. Walker benefits.
On November 15, 1979, claimant, unbeknownst to his attorney, saw Dr. Dale W. Peters in Dallas, Texas, who diagnosed his illness as pesticide poisoning. Claimant said nothing to anyone of this visit until he visited with his present attorney about a related products liability case on January 10, 1980. A medical report dated January 11, 1980, prepared by Dr. Dale W. Peters, indicated that claimant suffered from exposure to pesticides. Mr. Walker denied that Dr. Peters told him at his November 15, 1979, examination that he diagnosed his condition as being caused by pesticide poisoning. However, Dr. Peters, in a deposition taken April 30, 1981, testified that he did tell him. He further testified that his diagnosis was substantiated as of December 13,1979, when he received the results of tests of Mr. Walker’s blood samples taken November 15, 1979.
In Eddings v. Big Jim Service Center, Inc., 404 N.Y.S.2d 441, 62 A.D.2d 1119 (1978), the claimant appealed a decision of the Workmen’s Compensation Board denying her application to reopen her claim. The Board’s decision was affirmed. The Court stated:
Here, claimant seeks to have her case reopened on the basis of newly discovered evidence, and yet it is undisputed that the alleged new evidence was discovered by her attorney almost two months before the board’s decision denying her death benefits. Nonetheless, no attempt was made to apprise the board of this evidence prior to the issuance of its decision on January 22,1976, and the failure of the claimant or her attorney to so act in this regard justified the board’s later refusal to reopen the case.
Here, appellant in his oral argument conceded that the November 15, 1979 examination by Dr. Peters and the verification by Dr. Peters of his initial diagnosis by the results of Mr. Walker’s blood samples would not come under any definition of newly discovered evidence. He argues that this information was common as to other medical histories related in other physician’s findings. He stated that the February, 1981, medical report of Dr. William Rea, an associate of Dr. Peters in Dallas, firmly established newly discovered medical evidence. Dr. Rea was a cardiovascular specialist with a sub-specialty in environmental aspects of cardiovascular disease. He testified in his deposition that until his tests were completed on February 17,1981, he could only make a suspected diagnosis of chemical sensitivity with an immune deficiency.
The problem we are faced with is the absence of any legislation that would allow the reopening of this case other than Ark. Stat. Ann. § 81-1823 (b) (Repl. 1976) and Rule 14 of the Arkansas Workers’ Compensation Commission.
Ark. Stat. Ann. § 81-1323 (b) (Repl. 1976) provides:
(b) Investigation — Hearing. ... If an application for review is filed in the office of the Commission within thirty (30) days from the date of the receipt of the award, the full Commission shall review the evidence or, if deemed advisable, hear the parties, their representatives and witnesses, and shall make awards, together with its rulings of law, and file same in like manner as specified in the foregoing. A copy of the award made on review shall immediately be sent to the parties in dispute, or to their attorneys. The full Commission may remand to a single member of the Commission or a referee, any case before the full Commission for the purpose of taking additional evidence. Such evidence shall be delivered to the full Commission and shall be taken into consideration before rendering any decision or award in such case.
Rule 14 of the Rules of the Arkansas Workers’ Compensation Commission contains the following language:
Introduction of Evidence. All oral evidence or documentary evidence shall be presented to the designated representative of the Commission at the initial hearing on a controverted claim, which evidence shall be stenographically reported. Each party shall present all evidence at the initial hearing. Further hearings for the purpose of introducing additional evidence will be granted only at the discretion of the hearing officer or Commission. A request for a hearing for the introduction of additional evidence must show the substance of the evidence desired to be presented.
We believe that all of the evidence which appellant alleges is “newly discovered evidence” was within the knowledge of appellant before the decision of the full Commission on January 10, 1980, and before the case was submitted to the Commission on November 27, 1979.
Until the Legislature acts, we adopt the rule that absent a showing that the Workers’ Compensation Commission acted arbitrarily and capriciously, or abused its discretion, a determination made by the Commission not to reopen a case will not be disturbed. Accordingly, we make no such finding in the instant case and we affirm.
Affirmed.
Cooper, J., dissents.
The text of this Rule was incorporated verbatim into Section 27 of the Act [Ark. Stat. Ann. § 81-1327 (c)] by Act 290 of 1981. This provision will no longer appear as a Rule effective March 1, 1982. | [
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Donald L. Corbin, Judge.
Claimant, David Timms, was found ineligible for unemployment benefits because he voluntarily left his last work without good cause connected with the work. We reverse and remand.
Ark. Stat. Ann. § 81-1106 (a) provides in part as follows;
[A]n individual shall be disqualified for benefits . . . [i]f he voluntarily and without good cause connected with work, left his last work.
Provided no individual shall be disqualified under this subsection if, after making reasonable efforts to preserve his job rights, he left his last work due to a personal emergency of such nature and compelling urgency that it would be contrary to good conscience to impose a disqualification; ... .
Claimant was employed as a machinist with the Talley Corporation in Newbury Park, California, making $6.50 per hour. Claimant’s wife was pregnant but planned to leave Arkansas to join claimant in California. Claimant testified that his wife fell and asked him to come home because she was afraid she might have injured the baby. In his written claim for benefits, claimant stated that there was no one to take care of his wife. Claimant asked his employer for a leave of absence but was informed that it could not be granted in less than two weeks after application was made. He then quit and returned to Arkansas.
“Even though appellant was the only witness at the hearing, the testimony of a party cannot be taken as undisputed. However, such testimony cannot be arbitrarily disregarded; there must be some basis for disbelieving it.’’ Butler v. Director of Labor, 3 Ark. App. 229, 624 S.W.2d 448 (1981). We find nothing in the record to refute claimant’s contention that he was faced with a personal emergency of such nature and compelling urgency that it would be contrary to good conscience to impose a disqualification.
In its decision, the Board of Review made a finding that claimant had not furnished the employer with a medical statement concerning the necessity of his return to Arkansas. Ark. Stat. Ann. § 81-1106 (a) does not require an individual to offer medical proof of a personal emergency to his employer; it requires the individual to make reasonable efforts to preserve his job rights. This court has held that an individual may preserve his job rights by requesting a leave of absence from his employer. Valentine v. Barnes, 1 Ark. App. 308, 615 S.W.2d 386 (1981), Morse v. Daniels, 271 Ark. 402, 609 S.W.2d 80 (1980), Turner v. Daniels, 270 Ark. 418, 605 S.W.2d 465 (1980).
We reverse and remand with directions to award benefits. | [
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SMITH, J.
Appellants seek by this appeal to reverse a judgment in the court below imposing a life sentence in the penitentiary upon a conviction of the crime of rape. The crime was alleged to have been committed upon Mrs. Olive Brummett, and, according to her testimony, the crime was one of revolting bestiality.
Appellants admit the act of intercourse but say that Mrs. Brummett fully consented and that she thereby compensated them for .services in attempting to • carry her from the city of Benton to the hamlet of Grape, in Saline County. Mrs. Brummett and her husband were moving back to this State, after having lived for a time in Oklahoma, and they were making the trip in a wagon when one of the mules died, and they were unable to proceed further with the wagon, and Mr. Brummett remained with the wagon and sent his wife on to Grape to see his brother-in-law, who lived there, about getting another mule or horse with which to proceed on his journey. Mr. Brummett had told his wife that an acquaintance of his named Will Dodson lived at Grape and came frequently to Benton, and that upon her arrival at-that place to inquire for Dodson, who would carry her to her destination. Upon her arrival at Benton she inquired for Dodson, but he was not in the city, and she was told that he would not be in town until three or four o’clock in the afternoon. She did not know Dodson and was anxious to be on her way, so she inquired of others about getting to Grape, but could find no one to take her there until she met appellant Cheney, who offered to perform that service. She left in a buggy with Cheney and Zinn, who commenced drinking shortly after leaving town. They invited her to drink but she declined. They commenced taking liberties with her person, which she repelled. Finally they drove to a point where the road lost its identity in the woods and appellants stated that they had lost the road to Grape and didn’t know how to proceed further. They then announced their intention to have sexual intercourse with Mrs. Brummett when she struck the horse with the whip and ran the buggy into a tree. She struck Cheney with the whip and made such resistance as she could by screaming, but no one heard or answered her call for help. She was taken from the buggy and ravished by first Cheney and then by Zinn. She says that in resisting Cheney she bit one of his fingers, but appellants smothered her cries by placing their hands over her mouth. She finally ceased to resist because she thought they were going to drown her in the river, and Cheney had intercourse with her for the third time. Appellants finally drank all their whiskey, but before doing so Cheney proposed to Zinn to drench Mrs. Brummett with some of it if she would not drink voluntarily, but Zinn refused to assist and this was not done. Mrs. Brummett made her escape and ran down the road to the home of a Mr. Starnes, but in doing so she had to leave her suitcase in the woods. Mrs. Starnes testified that Mrs. Brummett arrived at her house late in the afternoon. She was walking. Her clothing was wet and her hair full of sticks. She was excited and had been crying. Cheney followed Mrs. Brummett, and when he arrived he went into an outhouse, where he remained for about thirty minutes and then departed. Shortly after his departure Mr. Starnes returned home, and Mr. and Mrs. Starnes accompanied Mrs. Brummett in her search for her suitcase, which was found on the bank of the river. A photograph was offered in evidence showing the place where the grip was found; and other photographs were also offered in evidence showing the scene of the alleged offense. The accuracy of the photographs was established, but they were offered in evidence over appellants’ objections.
Appellants testified that they had an understanding with Mrs. Brummett before they left Benton, and that they were only prevented from having intercourse with her in the courthouse, where' they went for that purpose, by finding the room locked which they had intended to use. They left town together, and unrestrained liberties were taken with Mrs. Brummett’s person as they drove along until finally they realized they had lost their road. They then stopped and selected the most suitable place for the acts of sexual intercourse in which they then indulged.
Cheney accounted for his lacerated finger by stating that he and Zinn disagreed over the road to take to Grape and in the fight which followed Zinn bit his finger.
Over appellants’ objection the court gave an instruction reading as follows: “2. You are instructed that proof of actual penetration into the body shall be sufficient to sustain an indictment for rape.”
This instruction was objected to specifically upon the ground that there was no controversy about penetration and the jury would likely infer that if there was penetration the offense charged had been committed.
An instruction numbered 8 reads as follows:
“You are instructed that in determining the guilt or innocence of the defendants, you will take into consideration all the facts and circumstances as testified to by the witnesses in the case, and if from all the evidence in the case you find beyond a reasonable doubt that the defend ants raped the said Mrs. Olive Brummett, it will be your duty and you are instructed to find them guilty and assess their punishment at death in the electric chair or imprisonment for life.”
This instruction was objected to on the ground that it was too general and might permit the jury to lose sight of the elements necessary to constitute the crime of rape.
Instruction numbered 9 reads as follows:
“You are instructed that a reasonable doubt is not an imaginary, captious or fictitious doubt, but it is such a doubt as a reasonable and prudent person would have after hearing all the evidence in the case; and if, after hearing all the evidence in the case, you are convinced beyond a reasonable doubt that the defendants committed the crime as charged in the indictment, you will find them guilty. ’ ’
A general objection was made to this instruction, and it is now insisted that it permits the jury to take into consideration other matters than the evidence in the case in arriving at their conviction of guilt.
An instruction numbered 3 was requested by appellants which told the jury that it was Mrs. Brummett’s duty to give an alarm and make an outcry “when she first learned of defendants’ design to have sexual intercourse with her.” The court modified this instruction by adding after the word “design” the phrase “to forcibly and against her will. ’ ’
Other instructions were asked which told the jury that it would be essential to find that Mrs. Brummett resisted and that such resistance was carried to the uttermost. These instructions were given after having been amended by striking out the requirement that the resistance must be carried to the uttermost and inserting the phrase that s'he must have used all the means within her power.
During the closing argument of the prosecuting attorney the audience cheered him. This incident occurred just before the closing of his argument. And the attor ney was not then reprimanded. He proceeded with his argument, when the audience applauded a second time, when counsel for appellants requested the court to reprimand the audience for their applause. Thereupon the court said: “There has been a big crowd present all during this trial, and I have requested the audience each time we assembled, to keep very quiet, and the audience has been extremely quiet and courteous, and we have gotten along mighty nicely, except this cheering, I have noticed that such occurs in other places sometimes. It is improper, and I hope that it won’t occur again, it must not occur again because such conduct might prove fatal under certain conditions. Gentlemen of the jury, this cheering was improper and should not have taken place. You will not consider it or alloy it in any way to influence you in your verdict. The only thing you should consider is the evidence and the law.”
The trial consumed several days, and it is insisted that during that time the jury was subjected to improper influences, and a new trial was asked on that account.
And it is finally insisted that the evidence is insufficient to support the verdict.
We will discuss these assignments of error in the order stated.
It is very earnestly argued that the second instruction should not have been given for the reason stated. It must be conceded that the instruction was abstract and should not have been given; hut it is inconceivable that it could have been prejudicial. The jury could not have understood that proof of penetration alone was sufficient to constitute the crime of rape when the large number of other instructions dealt with the question of force and lack of consent and told the jury in the most unmistakable terms that no crime was committed if the act of intercourse was had with Mrs. Brummett’s permission. There were twenty other instructions in the case, and these would all have been immaterial if proof of penetration alone was sufficient to constitute the crime, and the jury could not have understood that all of these other instructions were meaningless, and that the question of force and lack of consent was unimportant provided only there was a penetration. The instruction given was in the language of the statute, and by it the court meant no doubt only to say that proof of penetration was sufficient without proof of emission. And while, as we have said, it should not, under the issues of this case, have been given, we feel certain that no prejudice resulted from having given it.
No prejudicial error was committed in the introduction of the photographs, as the acts of intercourse are admitted, and there is no controversy about the place. Nor is it contended that the photographs do not correctly reproduce the locus in quo. They reproduced the scene of the alleged crime and may have had some probative value on the question of consent. The jury might or might not have regarded the place as one which would likely be voluntarily selected for assignation purposes.
Instruction No. 8 might be said to be too general if it stood by itself. But it was one of a number of other instructions, and the court had not attempted in this or in any other instruction to declare the whole law of the case. It was the province of this instruction to declare the punishment fixed by the law, and it was correct in that respect, and it was not otherwise prejudicial.
We do not think instruction No. 9 is open to the objection now made to it. And we think it is not fairly susceptible to the objection that it permits the jury to take into account in arriving at their verdict anything except the evidence heard at the trial. Upon the contrary, its language is that “if after hearing all the evidence in the case you are convinced beyond a reasonable doubt” to return a verdict of guilty. We think it a strained and unwarranted construction of this language to say that it authorizes the jury to consider anything except the testimony in the case.
Appellants complain of the modification of their instruction numbered 3, set out above, and in support of their contention say that the instruction as asked was copied from the opinion of this court in the case of Threet v. State, 110 Ark. 159, where it had been approved. An inspection of that case, however, discloses the fact to be that the instruction there set out had been asked by the appellant in that case, according to which the jury would have been told that it was the duty of the woman assaulted “to use all the means within her power” to resist the assault. The court amended the instruction by adding the words “consistent with her safety” and the instruction was given in that case as modified. We there said that no error was committed in the modification made. We were not called upon to decide whether the instruction as given was a correct declaration of the law to be given in any case in which it might be asked. So we now say that the modification which the court here made to . the instruction which was there given was not improper but was a modification which should have been made. The effect of the modification in the case now before us was to relieve Mrs. Brummett of the duty to give alarm and make outcry until she first learned of appellants’ design “to forcibly and against her will” have sexual intercourse with her. In other words, under the instruction as modified, she was not required to give this alarm or make this outcry until she realized that appellants intended to have intercourse with her, without regard to her consent.
Other instructions were correctly modified by strikr ing out the requirement that Mrs. Brummett’s resistance must be carried to the uttermost and the substitution for that requirement that she use all the means within her power for that purpose. The law does not require of the woman, who seeks to protect her chastity, that she shall resist as long as either strength endures, or consciousness continues. It is essential that she shall not at any time consent, but none of the cases on the subject hold that she has consented because, through fear for her life or bodily safety, she has ceased to resist or fails to make an outcry. And in this connection we copy the instruction which as modified was given by the court, and we dispose of appellants’ contention in this respect by saying that they had no right to ask a more favorable declaration of the law than that given by the court:
“5. You are instructed that a mere pretense at resistance by the prosecutrix is not sufficient, but that resistance on her part must be in good faith, and she must use all the means within her power, consistent with her safety, and unless you find from the evidence, beyond a reasonable doubt, that the prosecutrix used all the means within her power, consistent with her safety, up to the time when the act of sexual intercourse was actually accomplished, it will be your duty to find the defendants not guilty.”
We do not know what the remarks of the prosecuting attorney were which occasioned the applause on the part of the audience. The first applause may have been in response to some thought or sentiment expressed by the prosecuting attorney, to which no one could object except that it was, of course, improper to have any applause at any time to any part of the trial. This first applause, however, was evidently not regarded by learned counsel for' appellants as significant or prejudicial, because no objection was made to it. Objection was made, however, when the applause was repeated, and the court admonished the audience that it must not occur again. It is insisted that the reprimand given was apologetic in its terms and that it should have been firmer and more emphatic. It appears, however, to have been sufficient for the purpose intended, as there was no further recurrence of the applause, and the jury was expressly told not to consider it or to allow it in any way to influence the verdict, and that the only thing which they could consider was the evidence and the law. We conclude, therefore, that the admonition given was sufficient to cure any prejudicial effect resulting from the misconduct on the part of the audience.
It is shown that one or more members of the jury spoke to persons who were not members of the jury. But there was an affirmative showing that these conversations had no relation to, or connection with, appellants’ trial. It is affirmatively shown that an honest attempt was made to preserve the integrity of the trial by keeping the jury together and that this was done as nearly as possible under all the circumstances. A large crowd of people attended the trial and crowded the courthouse and the hotel where the jurors slept and took their meals. An officer remained in constant attendance upon the jury, and while it was not possible at all times to prevent casual conversations which were shown to have occurred when some of the jurors left their fellows to go to the toilet, yet officers of the court accompanied these jurors, and it was shown that the conversations had were casual and in no way related to the trial.
What we have already said disposes of the contention that the evidence is insufficient to support the verdict of the jury. The only question that can arise in that connection is that of the truthfulness of Mrs. Brummett’s story, and that was a question exclusively for the jury.
Finding no prejudicial error the judgment is affirmed. | [
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HUMPHREYS, J.
Appellee instituted suit against appellant in the circuit court of the Fort Smith District of Sebastian County to recover damages in the sum of $3,000 for an injury received, due to the alleged negligence of appellant in constructing a track and bull wheel for its smelter in such close proximity to a supporting form for a pier of an ore dryer as to make it necessarily dangerous and hazardous for its employees to construct a pier; in operating the rabble rake and bull wheel; and in starting the rabble rake without giving notice or warning to appellee.
Appellant answered, denying that appellee received the injury through its negligence and pleaded an assumption of the risk and contributory negligence by appellee.
The cause was submitted to the jury upon the pleadings, evidence and instructions of the court. The jury returned a verdict in favor of appellee against appellant in the sum of $2,750, and a judgment was rendered in accordance therewith, from which an appeal has been duly prosecuted to this court.
At the time the injury occurred, appellant was constructing a smelting plant in South Fort Smith. The particular part of the plant where the injury occurred, consisting of bull wheels, rabble rakes, a track, cable, kiln, forms, crusher, controller platform, etc., was described by several of the witnesses, and, from their descriptions, appellant diagrammed the various parts of the machinery and the immediate surroundings. The correctness of the diagram, as descriptive of the wheels, rabble rake and immediate surroundings, is not questioned by appellee, so we incorporate it in this opinion as it is an aid to understanding the situation and operation of the machinery where the injury occurred.
The rabble rakes moved from north to south through the kiln for the purpose of stirring the hot ore. When in operation, the rakes moved slowly, taking five or six minutes to make a complete revolution. In making the revolution, and included in this time, two minutes were invariably consumed in stopping the rabble rake immediately after it passed through the kiln for cooling purposes. The molten mass of ore in the kiln heated the :rakes to a red heat when they were passing through it. 'The rakes were made of metal and would hold the heat imparted to them when in the kiln. Form “H” was a hollow construction, eighteen by twenty inches square, five feet high, braced on the north and west sides, and was made for the purpose of receiving and holding in shape the soft cement until it hardened into a supporting pier for the ore-dryer, which was to rest upon this and other
piers of the same character. Rods or bolts were to be imbedded in the cement piers, and for the purpose of accomplishing this, it was necessary to hang the bolts or rods in the forms before putting the soft cement in them. Appellee was a carpenter, experienced in the construction of plants of this character, and had worked prior to this time in this capacity for appellant. On the morning of the injury, he was working on the controller platform north and east of the north bull wheel when he and R. V. Denson were directed by the foreman to hang the rods or bolts in forms “H” and “I” to the northwest of the north bull wheel. R. V. Denson went to form “I” and appellee to form “H” to do this "work. Form “H” was within two or .three inches of the track upon which the trucks supporting the rabble rakes moved, and' a person standing either on the east or west side of the form would be in danger from the right wing of the rabble rake when passing. Appellee knew the close proximity of this form to the track and the dangers incident to the performance of this labor if standing either on the east or south side of the form when the rabble rakes were in motion. He also knew that if the rabble rakes were not being operated no danger could result to him from them while standing on either the east or west side of said form to perform the labor. In order to hang the rods or bolts in the form, he stood on two stakes at the southeast corner of the form with his back to the track, looking down into the hollow form. There was evidence tending to show that he could have taken his position on the north or west side of the form to do this work, but there was evidence tending to show that he could not do so on account of braces on those two sides. A crusher located a short distance to the west of the forms was being operated at the time the injury occurred. This crusher, when in operation, made a great noise. The rabble rakes in operation made little or no noise. The operator of the rabble rakes was operating the machinery from point “K” to the southwest of the south bull wheel and could not see one who was working at form “H.” Ordinarily, the operator would have stood at the controller platform to the northeast of the north hull wheel, but this platform had not been completed. Appellee knew of this fact. The evidence was conflicting as to how long appellee had been working at form “H” before the injury occurred. It ranged over a period of thirty minutes. Plows were attached to the wings of the two rabble rakes equidistant in the circle, and it was not shown how long they would retain heat after passing through the kiln. These plows were for the purpose of stirring the molten mass of metal in the kiln. There was evidence tending to show that the kiln had been in operation for thirty days, and that the rabble rakes were in operation night and day, and had been in operation during the entire night preceding the injury, and were in operation during the morning the injury occurred. There was evidence also tending to show that the rabble rakes had not been in operation during the morning the injury occurred. Appellee’s clothing was not burned, but his body was burned to some extent. There was evidence tending to show that when the rabble rakes were stopped for any considerable time, beyond the two minutes they were always stopped in the course of operation, that a notice or warning was given before starting them again. While appellee was thus engaged in hanging the rods or bolts, he was caught by the right wing of a rabble rake and held and pressed against the form by it. He could not extricate himself, and, in order to get him out, the workmen had to tear down the form.
It is impractical to set all the facts out in this opinion, so we have endeavored to set out what we regard as a summary of the facts after a careful reading of the record. It may be necessary in the course of the opinion to refer to and set out other facts which have been omitted from this statement.
Based upon this state of fact, appellant contends that under the undisputed facts appellee was guilty of contributory negligence and that he assumed the risk incident to the work he was doing at the time he received the injury. It is said by appellant that contributory negligence on the part of appellee in the instant case is a complete defense because the statute on comparative negligence, removing contributory negligence as a complete defense to a cause of action, applies to injuries resulting in death only. It is said that the words included in brackets in the fourth and fifth lines of section 2, Act 175, Acts 1913, were placed in the act by the Secretary of State without authority and that when the section is read, eliminating those words, it is clear that the Legislature intended to take away the defense of contributory negligence only in death cases brought against corporations for damages. Eliminating those words from the section, appellant is perhaps correct in his contention that the act would apply only in death cases, but, upon examination of the original act in the office of the Secretary of State, we find that those words, inserted by the Secretary of State, were a part of the act, and were inadvertently omitted from the enrolled bill by the enrolling clerk. Without the use of the words inclosed in brackets, the section is almost meaningless or at least quite ambiguous. The failure to insert the words was an obvious omission or misprision of the enrolling clerk. The Secretary of State therefore properly inserted them in the printed act. The act, therefore, applies to all injuries inflicted by a corporation and is not confined to injuries in death cases only.
It is said by appellant that appellee assumed the risk because the undisputed facts show that he voluntarily placed himself in a dangerous position by standing on the east side instead of taking a position on the north or west side of the form where the rabble rake could not have touched him. This position is unsound because the undisputed evidence does not show that appellee could have stood on either the north or west side and performed this work. The braces holding the form were on those sides, and it is not certain that he could have stood between the braces and the form or on the outside of the braces to do the work.
It is further said by appellant that appellee took his position where he did knowing that the rabble rake was in operation or would begin to move in a minute or two and fully appreciated that the wing of the rabble rake must necessarily catch and crush him if he remained in that position until it reached him. This position is not well taken for the reason that the evidence tends to show that the rabble rakes were not in operation and had not been for a considerable time, and that there was a custom to give notice or warning to all employees when the rabble rakes had been stopped beyond the period of two minutes for cooling purposes.
But appellant says that the evidence to the effect that the wing of the rabble rake was hot was proof conclusive that the rabble rakes were in operation at the time appellee took his position at the form to place the bolts. It does not necessarily follow that because the wing of the rabble rake that struck him was hot that they had not been stopped for a considerable length of time beyond the ordinary stop of two minutes for cooling purposes. They were composed of metal and might have retained heat for a considerable length of time. The evidence was conflicting as to how hot the wing was when it pinned him to the form.
It is further said that because appellee was in a position where he could see and should have seen the approach of the rabble rake and was fully cognizant of the dangers incident to its approach, and because of the further fact that he did not depend upon notice or warning in case the rabble rake should start, that he necessarily assumed the risk incident to the performance of the work. The undisputed evidence does not show this state of case. There is some evidence to the effect that it was necessary for him to look down into the form in order to place the bolts; that the crusher was being operated with great noise; that the operation of the rabble rake was without noise; and that the appellee did depend upon a notice or warning in case the rabble rakes should be put in operation.
It is insisted that the court erred in telling the jury in instructions Nós. 1 and 2 that if appellee established any one of the allegations of negligence alleged in the complaint they might find for appellee. The facts in this case narrowed the issue of negligence to the sole question of whether appellant was guilty of negligence in starting the rabble rakes without giving notice to appellee. There was no substantial evidence introduced tending to show that appellant was negligent in constructing form “H” near the track, or in the operation of the machinery. The instructions were abstract in so far as the first and second grounds of negligence alleged in the complaint were concerned. There is no proof upon which to present them as issues to the jury. There might be some force in the suggestion of counsel for appellee that the error complained of in the first instruction was a matter of form .and that it was the duty of appellant to specifically object to the instruction because it submitted all the issues of negligence alleged in the complaint to the jury, if the erroneous submission of those issues had not again been reiterated and reaffirmed in instruction No. 2. We think where the error appeared in both instructions and was specially, emphasized in, the second instruction that it was calculated to mislead the jury.
It is insisted by appellant that the court erred in giving instruction No. 4, requested on motion of appellee. Said instruction is as follows:
“4. If the jury believe from the evidence that a man of ordinary prudence and caution for his own safety, situated as was the plaintiff, and having his knowledge and information, or such knowledge and information as the evidence shows by ordinary care he should have had, and being engaged in his occupation, would have gone to the place where the evidence shows he was working to perform the work he was called upon to do, then this would not constitute assumption of risk on his part.”
We think this instruction told the jury in so many words that if the appellee exercised due care he did not assume the risk. Putting it in another form, we think the instruction was to the effect that if appellee was not guilty of contributory negligence he could not assume the risk. This instruction was inherently wrong because this court has committed itself to the doctrine that an employee may assume the risk incident to his employment, though not guilty of contributory negligence in the performance of the work. There is a well-defined distinction between contributory negligence and assumed risk, and it is misleading to tell a jury that they are one and the same thing.
“The defenses of assumed risk and contributory negligence are separate and independent; the former arising out of contract, while the latter does not.” St. Louis, I. M. & S. R. Co. v. Brogan, 105 Ark. 533; E. L. Bruce Co. v. Yax, 135 Ark. 480.
Instruction No. 5, given on motion of plaintiff, is also erroneous. Instruction No. 5, in effect, told the jury that appellee assumed the ordinary risk and hazard incident to the employment, but that the assumption did not include the dangers resulting from the negligence of appellant. This is error because such assumption of risk would include the negligence of appellant if appellee knew of the negligence and appreciated the danger incident to the service.
It will not do to say that errors contained in these instructions were cured by other instructions correctly defining the doctrines of “assumed risk” and “contributory negligence.” These errors were calculated to bewilder the jury and mislead it.
The instructions should have limited the issue to the alleged negligence in starting the machinery without giving notice or warning to the employees, and should have correctly defined the law on assumed risk.
The cause must be reversed on account of errors pointed out, so we deem it unnecessary to discuss the other assignments of error.
For the errors indicated, the judgment is reversed and the cause remanded for a new trial.
SMITH, J., dissenting.' | [
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HAET, J.
This suit was commenced before a justice of the peace. There are no written pleadings contained in the record, but the transcript of the justice of the peace shows that on the 16th day of June, 1917, M. C. Laramore filed an affidavit against O. M. Eadford, Public Administrator, for the replevin of two horses. On the 7th day of July, 1917, the parties appeared and evidence was heard on a motion of the defendant to dismiss the case. After hearing the evidence, it was ordered that the motion be overruled, and that the plaintiff recover of the defendant the property involved in the action. The defendant filed an affidavit for appeal to the circuit court which was granted by the justice of the peace. The record shows that in the circuit court the following proceedings were had:
“In the Montgomery Circuit Court.
“February Term, 1918. (Feb. 5, 1918.)
“M. C. Laramore, Plaintiff, vs. “O. M. Radford, Public Admr., Defendant.
‘ ‘ Comes defendant and demurs to the jurisdiction of the court, and moves the court to dismiss the ease. After hearing the evidence, the motion is sustained and the case is dismissed, to which ruling of the court the plaintiff excepts and prays an appeal to the Supreme Court, which is granted and plaintiff given 60 days to file bill of exceptions. ’ ’
So far as the record discloses, the plaintiff neither filed a motion for a new trial nor a bill of exceptions. The record recites that the court, after hearing the evidence on the motion of the defendant to dismiss the case, sustained it.. In this state of the record, we must assume that the ruling of the court upon the motion to dismiss was supported by sufficient evidence. The record does not show upon what particular ground the defendant asked the court to dismiss the case, but we must assume that if the court had authority to dismiss the action on any ground the evidence was sufficient to support the finding of the court upon the issue of fact presented by the motion. Heard v. McCabe, 130 Ark. 185; Billingsley v. Adams, 102 Ark. 511; Armstrong v. Lawson, 128 Ark. 39; and James v. Dyer, 31 Ark. 489.
It follows that the judgment must be affirmed. | [
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Tom Glaze, Judge.
Appellant appeals from a jury verdict which found him guilty of theft by deception. He contends the trial court erred when it (1) denied his motion for continuance, (2) restricted his cross-examination of the victim and a police officer, and (3) determined the evidence sufficient to sustain a conviction. Our study of the record reflects the trial court was correct in each instance, and therefore, we affirm.
I. MOTION FOR CONTINUANCE
Appellant was charged jointly with co-defendant, James Guy, and they were to be tried together on January 7, 1982. However, Guy failed to appear on the morning of the trial, and appellant’s counsel moved for continuance. In support of his motion, counsel alleged that he expected Guy’s testimony to establish an alibi for the appellant and anticipated that Guy would take all the liability for the charges filed in the case. The court denied the motion. It was again denied when counsel for appellant renewed his motion, stating the same grounds immediately before the trial commenced.
The trial court’s action will not be reversed absent a clear abuse of discretion amounting to a denial of justice, and the burden is on appellant to demonstrate such abuse. Brown v. State, 5 Ark. App. 181, 186, 636 S.W.2d 286 (1982). It is also settled law that in the absence of a showing of prejudice, we cannot say the refusal of a continuance is error. Russell v. State, 262 Ark. 447, 559 S.W.2d 7 (1977). See also, Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977).
In considering appellant’s contention, we find it significant to mention early that appellant had signed a written statement which clearly reflected his participation with Guy in their theft by deception scheme. This statement was admitted into evidence without objection at appellant’s trial. Throughout the two-page statement, appellant related his knowledge and involvement in the scheme, which included his presence at the place and time the crime was committed. In brief, appellant admitted in the statement that Guy bought two old televisions from a rental shop. Guy later “wrapped” them so they appeared as new television sets. The next day, appellant and Guy loaded the sets in appellant’s car, and they proceeded to a welding shop where Guy unloaded one of the televisions and sold it. The statement further reflected that the only thing appellant received from Guy for “taking him around” was a tank of gas. Appellant admitted that two other old televisions were bought and sold as new in the same manner. In addition to making a statement, appellant also testified at trial. He admitted that he was with Guy when the crime occurred, but he denied any culpable knowledge of the theft “scam.” Nevertheless, the basis of appellant’s motion to continue was that Guy’s testimony would establish an alibi for appellant, i.e., a defense which is commonly understood to place a defendant at another place at the time of the commission of the alleged offense. See Doyle v. State, 166 Ark. 505, 507, 266 S.W. 459, 460 (1924), and Black’s Law Dictionary, 66 (5th ed. 1979). If the establishment of an alibi was the true basis of appellant’s motion to continue, it is difficult to surmise how Guy’s failure to testify prejudiced appellant in view of his written statement and in-court testimony, admitting he was with Guy when the crime was committed.
Perhaps appellant’s counsel misstated what he intended to prove through Guy’s testimony, and it was not the establishment of an alibi at all. In this vein, appellant may have intended to show that although appellant was with Guy at all relevant times, appellant was unaware that Guy was engaging in criminal conduct. Of course, we are forced to speculate in considering what appellant expected to show by Guy’s testimony because he failed to proffer any testimony or evidence which would serve as a factual basis to exculpate appellant and his role in the crime.
Since appellant proffered no testimony, it is justas easy to speculate that he did not know what testimony Guy would give and, indeed, had no real assurance that Guy would testify at all. After all, appellant’s written statement that recited his own involvement in the theft scheme also clearly charged that Guy was the one who initiated the scheme. On this same point, appellant never established the actual reason Guy failed to appear at the trial, a fact which could easily have been shown, if not at trial, through a motion for a new trial.
As we noted earlier, we find it significant that this is not a situation in which the appellant had proclaimed his innocence throughout the case. Instead, appellant gave the State an incriminating statement which served as the single most damaging piece of evidence in support of the charges filed against him. For that reason alone, it was important for him to show any other evidence upon which he relied to support his continuance motion and claim of prejudice. Appellant should have given the court the evidence that he expected to offer through Guy’s testimony. Only then would the court be in the position to properly weigh such proffered evidence in light of appellant's own self-incriminating statement and the other evidence that was available to prove the charges against him.
Appellant was not prevented from offering testimony that he honestly expected to elicit from Guy if he had been available to testify at the trial. It was his burden to do so, and he failed. Because of this fact, the trial court was in no position to weigh the prejudicial impact of Guy’s absence. Consequently, we are unable to say it abused its discretion in denying appellant’s motion to continue.
II. RESTRICTION OF CROSS-EXAMINATION OF VICTIM AND A POLICE OFFICER
Appellant first complains that the trial court impermis-sibly limited his cross-examination of the complaining witness, Mike Cole. Cole purchased one of the televisions for $100 upon the representation it was new. During his cross-examination, he testified that he had recently purchased a new television sometime after his transaction with Guy and appellant. When asked how much he paid for the new set, the court sustained the State’s objection that the question was not relevant. Although appellant failed to state to the court why he believed the question was relevant, we can only assume he was attempting to show that Cole knew the price of a new television, and he was not misled or deceived in his purchase from Guy and the appellant. Even so, we find no merit in his argument. First, nowhere in the record do we find any evidence which establishes that the television purchased from Guy and appellant was comparable to the one Cole purchased later. Secondly, and more importantly, other testimony elicited from Cole on cross-examination established not only that he believed the television he purchased from Guy and appellant was at a bargain price, but also that he had an idea that the television might have been stolen. In spite of this testimony, the jury convicted appellant of theft by deception. Since it is not an abuse of discretion to interfere with or limit cross-examination of a witness when it appears the matter has been developed sufficiently and presented clearly to the jury, we find no merit in appellant’s argument on this point. See McCorkle v. State, 270 Ark. 679, 607 S.W.2d 655 (1980).
Appellant also contends that his cross-examination was unduly restricted when he asked the police officer, who took appellant’s written statement, if he believed appellant when “he said he didn’t receive anything.” The trial court sustained the State’s objection based on irrelevancy. The court’s ruling was correct for at least two reasons: (1) it is the function of the trier of fact to determine what portions of the statement are to be believed and what portions are to be discredited. Core v. State, 265 Ark. 409, 578 S.W.2d 581 (1979); and (2) the question was argumentative and called for the witness to state a conclusion as to appellant’s belief. Dillard v. State, 260 Ark. 743, 543 S.W.2d 925 (1976).
III. EVIDENCE SUFFICIENT TO SUSTAIN CONVICTION
We first note appellant’s argument that the trial court erred in denying appellant’s motion for directed verdict at the close of the State’s case-in-chief. This argument is unavailing because his motion was not renewed at the conclusion of all the evidence and he introduced evidence (including his own testimony) after the denial of his motion. See Chandler v. State, 264 Ark. 175, 569 S.W.2d 660 (1978), and Wiley v. State, 268 Ark. 552, 594 S.W.2d 57 (Ark. App. 1980). Thus, as we were required to do in Wiley, we now judge the sufficiency of the evidence on the entire record. In doing so, we view the evidence in the light most favorable to the appellee. Pope v. State, 262 Ark. 476, 557 S.W.2d 887 (1977).
Mike Cole testified that on June 16, 1981, he was at his place of employment and heard from other employees that there were two men parked in his company’s driveway, and that they had some televisions for sale. One of the men sat in a car while the other was talking to employees about the televisions. Cole said that the man related the televisions were “leftover freight” from a Tulsa truck and that he wanted $150 a piece for them. Cole unloaded the televisions from the men’s car after the man sitting in it backed the car near a company service truck. After Cole and the other employee paid their money, the two men left. Cole then unwrapped the televisions only to find two “old, dilapidated” televisions. He contacted the Fort Smith Police Department and gave Detective James Davis a description of the two men and what occurred. On June21,1981, appellant and Guy were arrested, and on the same day, appellant gave the police his written statement of his involvement in the crime.
Since we related the relevant text of appellant’s statement in Point I, it is unnecessary to repeat those portions. Suffice it to say, appellant’s statement established his connection with the crime which occurred on June 16, and though he denied receiving anything from Guy in return except a tank of gas, appellant’s statement clearly related his knowledgeable participation in the theft scheme. While it is true the appellant’s version at nial differed from his prior statement and Detective Davis’ testimony, the resolution of those differences was a matter for the jury.
Affirmed.
Cooper, J., dissents.
Appellant later asked Cole if there was a difference in the two televisions, but the court sustained the State’s relevancy objection and that ruling is not argued on appeal. | [
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Tom Glaze, Judge.
This case is another in a series of Workers’ Compensation Commission decisions concerning our rehabilitation law, Ark. Stat. Ann. § 81-1310 (£) (Supp. 1981). Here, the appellant appeals the Commission’s decision denying her entitlement to a rehabilitation evaluation.
On February 6,1980, appellant sustained a compensable injury. Her healing period ended on March 11,1981, leaving her with a 10% physical impairment to the body as a whole. In May, 1981, appellant’s employer asked her to return to work, offering her a higher paying job that was tailored to her physical limitations. She declined the new job and instead requested an evaluation for rehabilitation purposes.
The Commission found that the medical and other evidence submitted by the appellant had failed to prove that her injury and resulting impairment prevented her from returning to her previous job, to the new job offered by her employer, or to other employment similar to her prior job.
The thrust of appellant’s argument is that since she sustained a permanent disability and duly filed her request for rehabilitation, the Commission was compelled to order a rehabilitation evaluation. We cannot agree. Such an interpretation of our rehabilitation law would mean that the Commission has no discretion to determine whether a claimant is a bona fide candidate for rehabilitation. Obviously, there are employees who have sustained permanent-partial disabilities yet are not viable candidates for rehabilitation. When these situations arise, the Commission is not automatically required to order an evaluation at the employer’s expense merely because the employee requests it.
Although § 81-1310 (f) does not specifically mention evaluation reports, it does provide for the Commission to determine if a proposed program of vocational rehabilitation is reasonable in relation to the disability sustained by the employee. The statute also alludes to a period of time during which the parties may explore rehabilitation potential. The Commission’s role, as defined in § 81-1310 (f), requires the exercise of its discretion when approving or disapproving a rehabilitation program. Before doing so, the Commission must first decide if the claimant is a candidate for rehabilitation.
This case is distinguishable from our recent case of Moro, Inc. v. Davis, 6 Ark. App. 92, 638 S.W.2d 694 (1982). In Moro, the claimant requested a rehabilitation evaluation. At the time of the initial request, no evidence was presented to substantiate that he was a candidate for rehabilitation. Later, the claimant did establish he was a candidate, but the employer continued to categorically deny claimant’s need for rehabilitation. Therefore, we upheld the Commission’s finding that the employer had controverted all rehabilitation benefits.
As was true in Moro, an employer risks the controversion of all rehabilitation benefits when the evidence substantiates the need for a rehabilitation evaluation, but the employer assumes an inflexible position against it. Here, appellant never established that she was a candidate for rehabilitation. In fact, she had been psychologically and medically released to return to work, but she refused to work under any conditions. The evidence shows that if she had returned to work, she would have received a 20% increase in wages. Therefore, we find there is substantial evidence to support the Commission’s finding that appellant failed to show entitlement to a vocational rehabilitation evaluation.
Affirmed. | [
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HART, J.
On July 7,1917, Fred Brown filed an affidavit before a justice of the peace in Fulton County, Arkansas, charging R. W. Brown with the crime of petit larceny. The defendant was convicted before the justice of the peace and appealed to the circuit court. There a motion by the defendant to quash the judgment of the justice of the peace was sustained and the State appealed to this court. The court held that the circuit court erred in quashing the judgment because’ under the statute it should have tried the case anew as if no judgment had been rendered in the justice court. Therefore the judgment of the circuit court was reversed and the cause remanded for a new trial. State v. Brown, 131 Ark. 127.
After the case had been remanded and had been called for trial in the circuit court, but before the jury had been impaneled and sworn to try the case, the defendant made a motion to dismiss on the ground that no bond for costs had been filed as required by section 2476 of Kirby’s Digest. The motion of the defendant was sustained by the circuit court and the State has again appealed to this court. The circuit court erred in dismissing the prosecution for the failure of the prosecuting witness to file a cost bond. No motion was made to require a bond for costs to be given in the justice court and the law does not require the prosecuting witness to give a bond for costs in the circuit court. A failure to give bond under the statute is a matter to be pleaded in abatement in the justice court and the issue can not be raised in the circuit court for the first time. Jones v. State, 111 Ark. 51, and Payne v. State, 124 Ark. 20.
This court has held that, until the entire jury is selected and sworn, jeopardy does not attach. Whitmore v. State, 43 Ark. 271, and State v. Ward, 48 Ark. 36.
In the present case the jury had not been impaneled and sworn and the court dismissed the prosecution. Therefore the judgment will be reversed and the cause will be remanded for a new trial. | [
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HART, J.,
(after stating the facts). Counsel for the defendants assign as error the action of the court in refusing to instruct the jury that the defendants could justify their action in instituting the prosecution by showing that they relied in good faith upon the advice of the justice of the peace after making a full and fair disclosure of all the facts to him. The court not only refused to give this instruction but gave the converse of it. The jury were instructed, in effect, that while the fact that the defendants detailed all the facts to the justice, if done in good faith, could not be considered by it as a defense to the action, it was proper to go to the jury as a circumstance tending to show the absence of malice in suing out the warrant for the plaintiff’s arrest and in mitigation of damages.
(1) The court was right in refusing the instruction asked for by the defendants and also in giving the one just referred to for the plaintiff. We have held that proof that defendants acted upon the advice of counsel learned in the law or upon the advice of the public prosecutor given, after a full and fair statement of all the known facts, will be a complete defense to an action for malicious prosecution because it is conclusive evidence of the existence of probable cause. Price v. Morris, 122 Ark. 382. The reason is, probable cause depends upon the facts and the law. A complainant may know the facts but not the law. Therefore he may obtain advice upon the latter from one learned in the law and be protected though a mistake be made by the legal adviser. Besides attorneys at law are in a sense officers of the court, and upon grounds of public policy, where a complainant has acted upon the advice of competent counsel in good faith, after a full disclosure of all the facts, he should not be mulcted in damages for instituting a prosecution, although the party accused may be innocent of the crime alleged against him. There is, however, no policy of the law to be served by permitting the complainant to accept and rely upon the opinion and advice of a justice of the peace. It is not the duty of a justice of the peace to advise prospective litigants. They are not usually learned in the law and on that account can not be safe advisers on important legal questions. While the advice of the justice of the peace under such circumstances is not a defense to an action for malicious prosecution, it may be shown in evidence in mitigation of damages and as a circumstance tending to show the absence of malice on the part of the complainant. Catzen v. Belcher, 64 W. Va. 314, 16 A. & E. Ann. Cas. 715 and case note. Numerous decisions of courts of last resort of the various States are cited in support of the rule laid down. See also Cooley on Torts (3 ed.), vol. 1, pp. 329 and 330.
It is next insisted that the court erred in giving instruction No. 2 at the request of the plaintiff. The instruction reads as follows: “Malice used in these instructions does not necessarily mean hatred, or ill will— that is to say, it is not necessary for the plaintiff to prove that the defendants prosecuted him on account of any hatred or ill will which they bore towards him. Malice, as used here, means any unlawful or improper motive, so that if you find from the evidence that the defendants prosecuted the plaintiff not in good faith and for the purpose of vindicating the law and punishing crime, but on account of some improper or unlawful motive, then you are instructed that the plaintiff has made out a cause of action in this respect. Malice as here used may be inferred from the want of probable cause — that is to say, if the defendants prosecuted the plaintiff without any reasonable or probable cause therefor, you would be justified in concluding that they did it maliciously.”
(2) Counsel for the defendants insists that the giving of this instruction constitutes error calling for a reversal of the judgment. In this contention we think counsel are correct. A similar instruction was condemned and held to be reversible error in the case of L. B. Price Mercantile Co. v. Cuilla, 100 Ark. 316, and in Dare v. Harper, 101 Ark. 37. To justify an action for malicious prosecution, both want of probable cause and malice must be shown. Where there is want of probable cause, the jury may infer malice, but they can not properly do so if all the facts disclosed lead to a different conclusion. If the law imputed malice from want of probable cause alone, then there would be no distinct requirement of malice, but want of probable cause would be the sole element necessary.
Counsel for the plaintiff, however, insist that the instruction was not prejudicial because the undisputed facts show that the defendants acted maliciously in procuring the arrest and prosecution of the plaintiff for taking the cotton from the gin lot of Deadrick. We do not think counsel are correct in this contention.
.According to the testimony of the defendants they made a full and fair disclosure of all the facts to the justice of the peace. They told him about the respective claims of Kable and Carey and Jackson to the bale of cotton. After they had stated the facts to him the justice of the peace told them that Carey and Jackson had taken property that did not belong to them and that they were guilty of trespass. They said they did not know what head the charge would come under and acted in good faith on the advice of the justice of the peace, believing that they were signing an affidavit only charging him with taking property that did not belong to him from the gin platform without the permission of Deadrick, who had the cotton in his charge. It is true it turned out that Carey was not guilty of any crime, but the defendants, .according to their testimony, believed him to be guilty of •a crime when they made the affidavit to procure a warrant for his arrest, and according to their testimony they .acted in good faith and relied upon the opinion and advice of the justice of the peace in aid of their own judgment. Under these circumstances, it could not be said as ■a matter of law, that they were guilty of malice in instituting the prosecution against Carey.
Again it is insisted by counsel for the defendants that tbe judgment should be reversed because the original affidavit signed by them did not contain a criminal charge and could not therefore be made the basis of an action for malicious prosecution.
In answer to this argument, it is only necessary to say that the plaintiff does not base his action on the original affidavit. It is based entirely on the affidavit as amended in which he claims that the defendants charge him with grand larceny. According to his testimony the defendants made oath to the affidavit after it was changed so as to charge him with grand larceny. He stated in positive terms that the justice of the peace asked them to stand up and be sworn; that the justice read the affidavit to them with the words ‘ ‘ grand larceny ’ ’ in it, that he then asked them if the signatures to the affidavit were their own signatures and that the defendants admitted them to be their own; that in their testimony the defendants, charged him with grand larceny by stealing a bale of cotton from the platform of the gin of Deadrick. Therefore the court did not err in this respect.
For the error in giving instruction No. 2 at the request of the plaintiff as indicated in the opinion the judgment must be reversed and the cause will be remanded for a new trial. | [
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HUMPHREYS, J.
On the 28th day of October, 1915, Alex Perdue presented to appellant, administrator of the estate of J. J. W. Smith, deceased, a note of date February 20, 1904, for allowance, showing a balance due thereon of $1,446.21, after deducting all credits which were entered on the back of the note. Attached to the note was an affidavit of authentication. Appellant disallowed the claim, whereupon appellee presented the claim to the probate court of Union County, Arkansas, upon due notice to the administrator. The probate court allowed the claim, from which an appeal was prosecuted to the circuit court of Union County.
Appellant’s defenses against the claim in the circuit court were: first, that the affidavit of authentication was not signed by Alex Perdue himself, but that his name was signed by his son who failed to witness it in writing; second, that the note was paid by J. J. W. Smith in his lifetime.
The circuit court tried the cause without a jury upon the issues joined and evidence adduced and rendered a judgment against the administrator in the sum of $1,446.21. - From the judgment an appeal has been prosecuted to this court.
It is insisted that the court erred in admitting the note in evidence as authenticated. The evidence dis closed that Alex Perdue could write hut that, instead of signing his own name, he directed his son to sign it to the affidavit of authentication for him. His son did as directed, but did not attest the signature as a witness. Appellant cites section 7799 of Kirby’s Digest in support of his contention that appellee’s signature should have been attested by the signature of his son in order to render it effective. This section has no application whatever to a person who does not attempt to sign his name by mark. The statute referred to does not render an nnattested signature by mark void. A signature by mark unattested would be valid if proved. The effect of attesting a signature by mark in the manner provided by statute is to render it a prima facie signature. If not attested in the manner provided by the statute, a signature by mark may be otherwise established. Ex parte Miller, 49 Ark. 18; Davis v. Semmes, 51 Ark. 48; Fakes v. Wilder, 70 Ark. 449; Ward v. Stark, 91 Ark. 268; Dawkins v. Petteys, 121 Ark. 498. A directed signature is as effective as if written by the party directing it. Clark v. Latham, 25 Ark. 16; Weaver v. Carnall, 35 Ark. 198. Especially would that be true where the party himself appeared before an officer and acknowledged the signature and approved the authorized or directed signature, as was done in this case.
Again, it is insisted by appellant that the court erred in not suppressing the deposition of appellee on the ground that he testified to transactions between himself and the deceased. It is true that a party to a suit between himself and the administrator of an estate can not testify to transactions between himself and the deceased. Kirby’s Digest, section 3093. But it is likewise true that a party to a suit against an administrator may testify to matters not concerning transactions between himself and the deceased relative to the issues involved. Practically all of Alex Perdue’s evidence pertained to matters not touching transactions between himself and J. J. W. Smith. He gave testimony as to the ownership of the note, the manner of authenticating same, etc. The motion to suppress the deposition went to the whole deposition, competent as well as incompetent parts thereof. It was therefore proper to overrule the motion. Hempstead v. Johnson, 18 Ark. 123.
Appellant insists that the court erred in denying him a jury trial. Appellant is correct in this contention. The statute is plain. Sections 127 and 128 of Kirby’s Digest are as follows:
Sec. 127. “The court shall hear and determine all demands presented for allowance under this act, in a summary manner, without the forms of pleading, and in ■airing testimony shall be governed by the rules of law in such cases made and provided.”
Sec. 128. “If neither party require a jury, the court shall decide the validity of the claim, and allow or disallow it; but, if either party require a jury, the court shall direct a jury to be forthwith summoned.”
It does not necessarily follow that, because the court committed error in this regard, the judgment must be reversed. In order to work a reversal, the error must have been prejudicial. Appellant admitted that his intestate executed the note and, by way of defense, pleaded payment. The burden was upon appellant to establish payment. The only evidence tending to prove payment were the credits on the back of the note and the evidence offered by appellee showing the correctness of them. All these credits were allowed. Giving the evidence offered by appellant in support of payment its greatest probative force, it amounts to nothing higher than surmise. Only one witness testified on the issue of payment in behalf of appellant. This witness was K. Q. Thompson, an uncle of deceased. The substance of his testimony, as abstracted by appellant, is as follows:
■ “ J. J. W. Smith was my nephew. I raised him. We were in business together. From my relation with Smith I believe the note has been paid. Smith talked to me freely about his business.”
The undisputed evidence established the claim, and it. was therefore the duty of the court to have directed a verdict even if it had been tried by a jury. No prejudice could, or did, result to appellant on account of the denial of a jury trial.
No error'appearing, the judgment is affirmed. | [
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HUMPHREYS, J;
This suit was instituted by appellee against appellant in the circuit court for the Southern District of Logan County, to recover damages on account of an alleged failure to hold passenger train No. 42 at Howe, Oklahoma, a sufficient length of time for appellee to debark, buy a ticket to Little Rock, Arkansas, and return to the train; and an alleged wrongful ejection therefrom at Booneville, Arkansas, coupled with an alleged unlawful arrest and imprisonment.
Appellant denied all the material allegations in the complaint. .
The cause was submitted to a jury upon the pleadings, evidence and instructions of the court. The jury returned a verdict against appellant in the sum of $308.57, upon which judgment was rendered. Proper steps were taken and an appeal has been prosecuted to this court.
The substance of the material facts necessary to a determination of the questions involved on this appeal are as follows: Dr. Muse, a physician residing at Conway, Arkansas, who was returning from a visit to his mother in her last illness, purchased transportation and a sleeping car ticket in the afternoon of the 12th day of February, 1917, from Oklahoma City to Howe, Oklahoma. He was en route home and was advised by the conductor of passenger train No. 42 that the train would stop at Howe long enough for him to buy a ticket to Little Rock. He was feeling badly from the loss of sleep, and, during the day and evening took three drinks of alcohol, diluted to some extent with water, and one dose of morphine. He boarded the train at Oklahoma City about 9:40 o’clock, and, after arranging for a call at Howe, retired. He suffered quite a little during the night and did not sleep much. In response to the call for Howe, he dressed, took his grip and coat and got off for the purpose of getting a ticket to Little Rock and returning to the train. The train started just as he got his ticket, and he got on the train at the first opening that reached him, which proved to be the platform between the express car and blind baggage. The door was locked and he could not get into the car. Due to the loss of sleep and perhaps somewhat to the influence of alcohol and morphine, he went to sleep. Booneville, Arkansas, is a little less than 50 miles from Howe. It took about two hours to make the run. The morning was very cold. The train reached Booneville at about 6:40 a. m. and remained there 25 minutes for the crew and passengers to get breakfast. The crew on the train was changed at that point. Appellee was found sleeping on the blind baggage by a porter who took him off. As he was doing so, the conductor of the train from Shawnee to that point informed him that he had been a passenger on the sleeper. The porter conducted him along the train until he met A. L. Moore, the conductor in charge from Booneville to Little Rock. At this point in the history of the case, the evidence became quite conflicting.
Appellee’s evidence tended to show that he was somewhat bewildered, due to the loss of sleep, and was numb from the cold; that he informed the conductor that he had a ticket to Little Rock; that the conductor disputed his statement and denounced him as a “bum;” that he felt in his vest pocket for his ticket.but could' not get it on account of the numbness of his hands; that he walked back to the sleeper and got on; that the conductor removed him from the sleeper roughly, and, in doing so, kicked him on the shin; that he afterwards tried to get on the day coach and was refused admittance by the brakeman, until he purchased a ticket; that his money had disappeared during the night in the sleeping car, but he went to the depot and tried to purchase á ticket with his individual check which was refused. • He then returned to the platform and was, standing there, having given up the idea of getting on the train, when an officer appeared, and, in response to the direction of the conductor, arrested him. He remained in jail until after dinner when, through acquaintances, he cashed a check and started at 8 o’clock p. m. for Little Rock. He purchased another ticket and did not tender the old ticket which he retained and produced in evidence. Sol Moore, ticket agent, testified that he telephoned at the instance of the road master, to the officer about appellant being there drunk and to come and see about it. The officer, conductor and other trainmen denied pointing appellee out and directing his arrest;
The evidence is quite voluminous and many questions as to the competency ;and relevancy thereof were raised and exceptions properly saved. A number of instructions were asked by appellant. Some of. them were refused and appellant saved its exceptions. Some of them were modified and given as modified and appellant saved its exceptions to the refusal of the court to give the instructions in the form asked and for the modification and giving them as modified. We deem it unnecessary to detail the other phases of the‘evidence or to set out all the instructions in full for the reason that appellant argues only two alleged errors for reversal.
It is insisted by appellant that the court erred in submitting to the jury the question of appellee’s arrest and imprisonment. The contention is that there was no evidence tending to show that the servants of appellant were acting within the scope of their authority when the arrest was procured.
It is a well settled rule of law that where agents or servants of a principal, acting within the scope of’ their authority, actual or apparent, wrongfully procure the arrest and imprisonment of any one, the principal is responsible for damages resulting from such arrest and imprisonment. Mayfield v. St. L., I. M. & S. R. Co., 97 Ark. 24.
The undisputed evidence in this case concerning the arrest is that the ticket agent phoned, at the request of the road master, for the officer who made the arrest. This court held in the case of C., R. I. & P. Ry. Co. v. Nelson, 87 Ark. 524, that (quoting syllabus 2): “A railroad company is not liable for the wrongful arrest by a policeman of a passenger, though the arrest was made under the direction of. the company’s station master, if the latter had no authority to direct the arrest to be made. ’ ’
In that case, under company rule 702, amongst other things, one of the station master’s duties was “to preserve order about the station.”
And in the case of Mayfield v. St. L., I. M. & S. R. Co., 97 Ark. 24, this court said: “A railroad station agent has no authority to prosecute a person who has wrongfully taken property of the railroad company placed in the custody of such agent.”
There is no proof in the case at bar that the ticket agent or the road master had any express or implied authority to procure the arrest and imprisonment of passengers or persons seeking passage upon the trains. Unless it was shown that authority to procure arrests was conferred by the company on the ticket agent ■ or road master, or the performance of their duties necessarily implied authority to procure the arrest and imprisonment of a party, their participation in the arrest and imprisonment of appellee would not warrant the submission of his unlawful arrest and imprisonment to the jury. Little Rock T. & E. Co. v. Walker, 65 Ark. 144; Mayfield v. St. L., I. M. & R. Co., supra.
No other official of the railroad company participated in the arrest, unless it was the conductor. In speaking with reference to the liability of a railroad company for the act and conduct of its conductor in ejecting passengers, this court has said that (quoting syllabus 3): “A street railway is liable for the wrongful acts of its conductor in ordering a policeman to arrest one of its passengers and remove him from the car in which he was riding; but not for such conductor’s subsequent acts in prosecuting the passenger for a breach of the peace, such prosecution not being within the scope of the conductor’s authority.” Little Rock Ry. & Electric Co. v. Dobbins, 78 Ark. 553.
And has further said (quoting syllabus 4): “A railroad company is not liable for the wrongful acts of its conductor in swearing out a warrant of arrest against a passenger on the next day after he was ejected from its train.” St. L., I. M. & S. R. Co. v. Waters, 105 Ark. 619.
It seems that the liability of a railroad company, on account of aji unlawful arrest and imprisonment by the procurement of its conductor, is limited to what is said and done by its conductor at the time the passenger is being ejected by him or under his authority, or for only those things said and done that are so closely associated with the act that they may be re garded as a part of the act. It was said in the case of Little Rock Ry. & Elec. Co. v. Dobbins, supra, that, “The evidence, so far as it relates to the arrest of the appellee on the car by the policeman at the request and direction of the conductor, was proper, for this was the method adopted by the conductor for the ejection of appellee from the car, and was therefore an act in the scope of the conductor’s employment.” And what was said and done by the ejected parties and the officials ejecting them on the depot platform immediately after the ejectment was held to be competent evidence in the case of St. L., I. M. & S. R. Co. v. Waters, supra. Inj the case at bar, appellee admits that what he thinks the conductor said pertaining to the arrest and imprisonment occurred on the depot platform after he had been ejected and after he had gone to purchase a ticket at the ticket office in Booneville and after he had given up 'all hope of getting on the car. What was said by the conductor, if said with reference to the arrest, was too remote in time and not sufficiently connected with the ejectment to hold that the procurement of the arrest and imprisonment was a part of the act of ejection. It was therefore error for the court to submit the question of arrest and imprisonment to the jury. There was no competent evidence to support the instruction.
It is also contended by appellant that the court erred in submitting the question of liability of the railroad for the value of the unused ticket from Booneville to Little Rock. The undisputed evidence is that appellee never presented this ticket at any time to the company for passage on its train. For this reason, we think he can not recover. It was said by this court in the case of St. L., I. M. & S. Ry. Co. v. Dare, 99 Ark. 486: “Even if he were entitled to recover the valué of the ticket, he could not do so because he retained it and did not offer to surrender it. ’ ’
For the errors indicated, the judgment is reversed and the cause remanded for a new trial. | [
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HUMPHREYS, J.
Appellee instituted suit against appellant in the Sebastian Circuit Court, Greenwood District, to recover an attorney’s fee of $625, based upon a written contract between himself and appellant, binding him to endeavor to recover by settlement or suit damages growing out of an injury resulting in death to appellant’s wife by'the train of the Midland Valley Railroad Company through the negligent operation of same by its employees. The contract provided that appellee should receive for his legal services 25 per cent, of the. amount recovered, if settlement was effected without suit. It was alleged that appellee performed all the duties required of him under the contract and that appellant received $2,500 in settlement for the injury and failed and refused to pay appellee’s fee.
The court ruled that the contract was void as against public policy and treated the action as one to recover for services upon quantum meruit.
Appellant defended upon the ground that no legal service was rendered, and if rendered, did not merit such reward. The cause was submitted to a jury upon the pleadings, evidence adduced and instructions of the court. A verdict was returned in favor of appellee for $325. A judgment was rendered against appellant for the amount, from which an appeal has been prosecuted to this court.
The undisputed facts disclosed that appellant’s wife was injured hy a Midland Valley Railroad train in Greenwood, on the morning of January 30, 1917, from which place she was removed to a hospital in Ft. Smith where she died as a result of the injury. After death and burial, appellee was employed by appellant to recover by settlement or suit, damages for the injury. The following written contract was entered into between them:
“ It is agreed by .and between J. N. McClain, party of the first part, and R. W. McFarlane, party of the second part, that the party of the first part employs the party of the second part to make settlement with the Midland Valley Railroad:
‘ ‘ That whereas the wife of the party of the first part was injured and killed by the train of the Midland Valley Railroad under circumstances that we believe was caused by the negligence and carelessness of the employees of the Midland Valley Railroad, therefore, the party of the second part shall endeavor to make settlement for said injury, failing in that that he is to bring suit and prosecute ■said suit to judgment. That in making settlement either before or after suit brought the party of the second part is to not act until he has submitted said offer of settlement to the party of the first part and obtained his consent. That the party of the second part is to have entire control of the settlement and suit if one is brought. That when said settlement is made, if without suit, the amount received is to be divided between the parties hereto, 25 per cent, being paid to the party of the second part and balance to the party of the first part; if suit is brought then of the amount received 50 per cent, is to go to the party of the second part and balance to the party of the first part.
“It is further agreed that if after suit is brought the children of the party of the first part desire to employ additional counsel they shall have the right to do so to aid in the prosecution of said suit.”
“ J. N. McClain.
“R. W. McFarlane.”
Appellee interviewed three eye-witnesses to the injury and advised appellant of his rights. Appellant entered into negotiations with the Midland Valley Railroad Company, and, as the settlement progressed, advised with appellee as to the amount he should receive in settlements Appellant finally settled with the railroad company for $2,500.
Appellant insists (1) that the contract between himself and his attorney was contrary to public policy and therefore void; and (2) that many reversible errors, not necessary to set out under our view of the case, were committed in the conduct of appellee’s cause of action under the rule of quantum meruit.
It is admitted by appellant that if the contract was valid, appellee had a right to recover under its terms. The fact is appellant received $2,500 in settlement of the damages. Under the terms of the contract, appellant and appellee were to divide the proceeds of the settlement, if made before the institution of a suit, in the proportion of 75 per cent, to appellant and 25 per cent, to appellee. In other words, under the undisputed facts in the case, appellee was entitled to recover $625, or one-fourth of the amount paid appellant in settlement of the damages, if the contract was not void. The invalidity of the contract is suggested and contended for under the rule laid down in Davis v. Webber, 66 Ark. 196, because the contract contains the following clause: “That the party of the second part is to have entire control of the settlement and suit, if one is brought. ’ ’ In construing this particular clause of the contract, it must be read in connection with the preceding clause which is as follows: ‘ ‘ That in making settlement, either before or after suit is brought, the party of the second part is not to act, until he has submitted said offer of settlement to the party of the first part and obtained his consent.” There is not necessarily any conflict between these two clauses when read together, it being apparent that the words “entire control,” as used in the latter clause, were used in the sense of managing the settlement and suit and not in the sense of preventing appellant from directing or commanding a-settlement. The first clause clearly limits the power of appellee to act in making the settlement except by consent of appellant either before or after suit. In the case of Davis v. Webber, the contract prevented the client from settling his claim without the assent of the lawyer. The contract in the instant case provides exactly to the contrary. It provides that the lawyer can not act without the consent of the client. So there is a very marked difference between the contracts. The rule laid down in the case of Davis v. Webber is as follows, (quoting syllabus 2):
“A stipulation in a contract for an attorney’s fee for prosecuting a suit that the client shall not settle the suit without the attorney’s consent is void as against public policy; and if such stipulation is not severable from the rest of the contract, but is an inducement for entering on it, the entire contract is void. ’ ’
Of course, this rule was not applicable to a contract which permitted the client to settle his suit without consent of the attorney. There must be an abridgment of the client’s right to settle his claim before a contract for services between him and his attorney can be declared void as contrary to public policy. We find no abridgment in the language of the contract, and none in the subsequent conduct of the parties under the contract. Acting under the contract, appellant himself made the settlement after advising with appellee, his attorney.
Under this view of the contract, we deem it unnecessary to proceed to a discussion of the many assignments of error insisted upon by appellant in the conduct of the case under the quantum meruit rule. Appellee only recovered $325, which is much less than he was entitled to under the undisputed facts in the case. It follows that appellant was in no way prejudiced by error in the conduct of the suit, if committed. The appellee did not cross-appeal and, therefore, we pretermit any discussion of appellant’s other assignments of error.
The judgment is affirmed. | [
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WOOD, J.
This action was instituted under section 7548 of Kirby’s Digest, authorizing the county court to dissolve any school district “whenever a majority of the electors residing in such district shall petition the court so to do.” Petitions were filed in the county court of Lee County in the following form: “We, the undersigned, citizens and electors residing within the territory of Special School District No. H, of Haynes, Arkansas, respectfully petition the court and pray that Special School District No. H, of Haynes, Arkansas, be dissolved and its powers and duties be declared void and no longer existing, and that the indebtedness due by it and the funds on hand to its credit be apportioned according to law.”
The trial court entered a judgment which contains the following recital: “The court, after having heard the evidence adduced, finds that the petitions filed herein are not sufficient nor in such form as to enable the court to make an intelligent disposition of the territory embraced within such Special School District and attach the same to adjoining districts and proportion the indebtedness due by said Special School District in the manner required by law. The court further finds that said petitions filed herein do not contain a majority of the qualified electors residing in the territory of said Special School District at the date of the filing of said petitions, and further finds that it would not be to the best interests of such districts, or the districts to which the territory thereof would be attached, to dissolve said Special District and proportion the indebtedness thereof as required by statute. ’ ’ Then follows the judgment dismissing the petitions, from which judgment is this appeal.
In Stephens v. School District No. 85, 104 Ark. 149, we said: “But in a proceeding of this nature the court is only warranted in making an order upon the petition of a majority of the electors residing on such territory consenting to, or requesting the formation of a new school district. That fact must be made to appear by the petitioners.” The above was said with reference to the formation of new school districts under sec. 7544 of Kirby’s Digest, which provides: “The county court shall have the right to form new school districts or change the boundaries thereof upon a petition of a majority of all the electors residing upon the territory of the districts to be divided.” The rule announced in Stephens v. School District No. 85, supra, is applicable as well to the statute (§ 7548) now under review.
In Hughes v. Robuck, 119 Ark. 592, the issue was whether or not this same district should be dissolved. In that case, speaking of the petition, we said: “but the court has no authority to dissolve any particular district except upon the filing of a petition conforming to the requirements of the act above quoted,” referring to § 7548 of Kirby’s Digest, supra (Act April 1, 1895).
In the opinion (Hughes v. Robuck, p. 595) we further said: ‘ ‘ This act of 1895 does not require the county court to dissolve the district upon the filing of a proper petition therefor. It merely confers upon the county court the authority to do so. A discretion abides with the court in passing upon the petition.” In Rural Special School District No. 17 v. Special District No. 56, 123 Ark. 570-573, we said: “We have held in several cases that the county court exercises discretion with respect to change of the boundaries of common school districts. Hale v. Brown, 70 Ark. 471; Stephens v. School District No. 85, 104 Ark. 145; Carpenter v. Leatherman, 117 Ark. 531; School District No. 45 v. School District No. 8, 119 Ark. 149. The same reason would apply for holding that the county court has discretion in annexing territory to a single school district.” It will thus be seen that the effect of our decisions is that, in the matter of forming, annexing territory to, changing boundaries of, .and dissolving school districts, the statutory requirements as to the petition therefor must be met. And further, when the statutory requirements are fulfilled, the county court in the first instance, and the circuit court on appeal and upon trial de novo,, still “has a discretion in the matter which is to be exercised for the best interests of the citizens of the district to be affected. ’ ’
The petitions praying for the dissolution of Special School District No. H of Haynes, Arkansas, do not recite that the signers to such petitions constitute a majority of the electors residing in the district. The petitions, therefore, do not show on their face that they contained a majority of the electors residing in the district. The issue as to whether or not the various petitions, considered as one, contained a majority of the electors residing in the district was purely one of fact. Appellants contend that their proof shows that at the time the petitions for the dissolution of Special School District No. H of Haynes, Arkansas, was filed, there were 156 electors residing in the territory. Special School District No. H of Haynes was composed of what was formerly the territory embraced in District No. 39 and a part of District No. 1. There was testimony tending to show that at the time the Special District No. H was created there were 156 electors residing in District No. 39, but there is no evidence showing, or tending to show the number of electors that resided at that time in that portion of the territory of Common District No. 1, which had been taken from that district and included in Special District No. H.
One of the witnesses named 17 electors as residing in that portion of the territory of District No. 1 which went to form Special District No. H, but he also testified that such number was “not near all the people that lived on that part of Special District No. H at that time.” He was sure that such number “was not all, but he could not tell how many there were.” But if it were conceded that the proof showed the territory comprising Special District No. H contained no more than 173 electors at the time the petition for dissolution was filed, still it can not be ascertained from the evidence set forth in the record with certainty that the petition for dissolution contained a majority of such electors.
The appellants presented petitions on which appeared 150 names, but as we have seen there was no prima facie showing that these were electors of Special District No. H, and the burden was upon appellants to show that they were. The court properly eliminated from its consideration a petition that was circulated by one Ross Hughes, because there was no competent testimony that the purported names thereon were genuine signatures of electors residing within the district.
But it could serve no useful purpose as a precedent to set out and discuss further in detail the evidence'bearing upon the issue as to whether a majority of the electors residing within the Special District No. H signed the petition of dissolution thereof. The court found that such was not the fact and we are not convinced from a careful examination of the record that this'finding was erroneous. But even though we were mistaken as to this and the testimony in the record showed conclusively that a majority of the electors residing in Special District No. H had signed and filed a petition to the county court asking for the dissolution of the district, still we would be unwilling to hold that the trial court abused its discretion in refusing to dissolve the district. In exercising its discretion the court could take into consideration all the circumstances that would affect the territory and the inhabitants thereof within the district proposed to be dissolved, as well as the adjoining districts. See School District No. 45 v. School District No. 8, 119 Ark. 149; also Hale v. Brown, supra.
To this end it was proper for the court to consider the petitions of remonstrance, and the court might also properly have taken into consideration the fact that the qualified electors residing in what was formerly District No. 39, if such were the fact, had petitioned the county court to include that territory in another district. But, even though the court might have erred in not considering this testimony, the error is not one for which the judgment should be reversed, because we do not deem it prejudicial.
While all the matters affecting the district sought to be dissolved and the districts adjoining were germane to the issue involved, nevertheless, under the authorities above cited, the court has a discretion in determining the issue, and its judgment thereon should not be reversed unless it clearly appears that it has abused its discretion and committed an error that is prejudicial to the rights of the party complaining thereof. As was said in School District No. 45 v. School District No. 8, supra: “The county court is not bound to grant the petition merely because the prerequisites are complied with, but that court, or the circuit court on appeal, may exercise a discretion in regard to making the change.”
No prejudicial error appearing in the record, the judgment is affirmed. | [
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SMITH, J.
On Christmas day, 1917, about seven ■o’clock P, M., John Wise, the constable of Clarke Township, in Greene County, was shot and instantly killed in the Main Hotel in the City of Paragould, Arkansas. No one was present at the killing except John Wise, Croft Morris and E. T. Gibson, who was the owner of the hotel. Gibson was indicted at the May, 1918, term of the Greene Circuit Court for murder in the first degree, and at his trial was convicted of murder in the second degree and his punishment fixed at twenty-one years in the peniten tiary, and lie has prosecuted this appeal to reverse that judgment.
A demurrer was filed to the indictment on the ground that the “indictment does not allege with what the pistol was loaded, nor does it allege in fact that the pistol was loaded.”
The allegation of the indictment was that Gibson had killed "Wise by “shooting him, the said John "Wise, with a dangerous weapon, to wit, a pistol, then and there had and held in the hands of him, the said Tom Gibson, with the felonious intent,” etc.
The motion for a new trial assigned as error the action of the court in holding four members of the special venire competent to serve as jurors, thereby compelling appellant to exhaust his peremptory challenges. The ground of this objection is the same as to each of these jurors. They had each read the newspaper account of the killing written by one Griffin Smith, with whom the veniremen were acquainted, and who testified as a witness at the trial, and it is insisted that under the showing made, Smith’s story as it appeared in the paper was not mere rumor, but had the weight and verity of a personal conversation with the witness. These veniremen admitted that they had formed- opinions about the case, although they stated that they could and would disregard them if accepted as jurors and would return a verdict based alone upon the evidence heard at'the trial.
Error was assigned in the refusal of the court to permit B. R. Hopkins to detail a conversation between Wise and Gibson on the morning of the killing, the purpose of the excluded testimony being to show the friendly feeling then existing between the men. The action of the court in refusing to give a requested instruction on the law of self-defense is also assigned as error.
We will discuss these assignments of error in the order stated.
The indictment was not drawn with the usual technical accuracy. But it is not defective. Our statute provides: “The words used in an indictment must be con strued according to their usual acceptation in common language, except words and phrases defined by law, which are to be construed according to their legal meaning.” Kirby’s Digest, sec. 2242. And when the language of this indictment is so construed, no room for doubt is left that the pistol then and there had and held in the hands of him, the said Tom Gibson, was loaded as pistols are ordinarily loaded.
Shortly after the killing occurred, Smith, in company with certain officers, went to the jail, where Gibson and Croft Morris had been carried, and there undertook to interview both of those men in regard to the killing, for the purpose of writing an account of it to be published in his newspaper.
Wise, Gibson and Morris had spent a considerable portion of Christmas day together, during which time they had regaled themselves by drinking whiskey and playing poker. Morris accused Gibson of firing the fatal shot, and has since persisted in that statement. According to the story written by Smith and published in the paper, Gibson denied firing the shot and stated that Morris had done so, but later, during the same interview, Gibson contradicted that statement, and finally stated that he would not talk further about the case. Smith did not write the article on the night of his interview but on the following day, and it was then written in narrative form from memory.
It is earnestly insisted that the statements made by the veniremen on their examination touching their qualification as jurors from which the facts above recited were elicited brings this case within the rule announced by this court in the cáse of Sullins v. State, 79 Ark. 127, on the subject of competency of jurors. In that case the juror testified that he had not talked with any of the witnesses in the case, but had formed his opinion from reading a report of the homicide in a newspaper written by his brother-in-law, who was also a witness for the State. The juror stated that he had confidence in his brother-in-law and relied on his statement in the paper and had formed his opinion from this statement. In holding this juror incompetent, Judge Riddick, speaking for the court, said:
“Ordinarily, opinions formed from newspaper reports do not disqualify, but when the author of the report is known to the juror as a witness in the case, and is a person in whom he has confidence, then an opinion formed from reading his statement disqualifies, just as an opinion formed from talking with such witness would disqualify. In other words, if an opinion formed from talking with one known to be a witness disqualifies, then an opinion formed from reading a written report of the facts of the homicide made by one known to be a witness and in whom the juror has confidence must also disqualify, because in each case the juror knows that the statement on which he bases his opinion is not a mere rumor but a statement of the facts by a witness.”
In the instant case, however, no attempt was made to show any special intimacy or friendship between Smith and any of the veniremen, and while the veniremen had formed opinions based upon the newspaper story, they stated that they regarded the article which they had read just as they would any other newspaper article which might or might not be true, and their testimony, taken as a whole, warranted the finding which the trial judge evidently made that the jurors did not regard the newspaper article as a narrative of one who had personal knowledge of the facts there recited. Indeed, it is not now contended that such is the case, for Smith was not present at the killing and knew nothing about it except what he had been told. It is true he had heard Gibson himself discuss the killing and make statements in regard to the circumstances of its commission, and he subsequently detailed these statements at the trial before the jury, but this evidence was of value chiefly as tending to refute the defendant’s explanation of the killing.
We recognize the fact that the record presents an exceedingly close question as to the competency of these jurors. But our statute wisely provides that it shall not be ground of challenge that a juror has formed or expressed an opinion from rumor merely (Sec. 2366, Kirby’s Digest). And it does not appear that the trial judge was not warranted in treating the newspaper article read by the veniremen as a mere rumor. Of course, it is possible for a juror to be so influenced by a newspaper report, which, at last, is nothing more than a rumor, as to be unable to disregard an impression thus created. Such person should, of course, be discharged, and the accused not be required to use a peremptory challenge to be rid of him. But that question is not presented here, as the jurors all stated unequivocally that they could render a verdict uninfluenced by the article which they had read.
The purport of the testimony of the witness Hopkins which was excluded was that Gibson and Wise, on the morning of the killing, had gone together to get some whiskey, and that their conversation, heard by Hopkins, disclosed no friction or ill will between the men. The exclusion of this testimony was not prejudicial, because the testimony on the part of the State shows that later in the day these men were still drinking together in friendly fashion and that no quarrel arose between them until after they had commenced the game of poker, which was only broken up by the killing. The exclusion of this testimony, even if erroneous, was not prejudicial.
The court refused to give, at appellant’s request, the following instruction: “While the defendant does not admit the killing, but on the contrary denies it, still if you find from the evidence that beyond a reasonable doubt, that he did in fact kill the deceased, John Wise, and if you find from the evidence that defendant, Tom Gibson, killed John Wise, and at the time he shot and killed Wise he believed honestly and in good faith from the facts and circumstances as they appeared to defendant at the time that deceased, Wise, was in the act of making a deadly assault upon him, under such facts and circumstances as make it reasonable for defendant to believe that he was about to lose his life, or receive great bodily injury at tbe bands of the said Wise, and fired the fatal shot to protect himself, he would be guilty of no crime, and it matters not that it may appear to you, or might then have appeared to some other person, that defendant was in fact in no danger at said time; but, if he honestly believed that he was, it will be sufficient, but the mere fact that defendant believed that his life was in danger is not in itself sufficient. In addition to that, it must appear that at the time it was done the facts and circumstances connected with the difficulty made it reasonable for defendant to have entertained the belief, acting in good faith and without fault on his part.”
It is conceded by the Attorney General that the instruction is correct as an abstract statement of the law, but it is insisted that no error was committed in refusing to give it under the facts contained in this record. The defendant did not admit the killing, but, upon the contrary, denied it. And it appears that the trial court took the view-that under those circumsances there could be no question of self-defense. There appear to be cases which so hold, but in nearly, or quite, all of them there was an entire lack of evidence that the killing was justifiable. The proper rule appears to be that, .where there is evidence that would support a finding of self-defense, the instructions should cover that feature of the case, notwithstanding the defendant’s testimony that he did not do the killing. Reed v. State, 40 N. E. (Ind.) 525; Morris v. Commonwealth, 46 S. W. 491; Gatliff v. Commonwealth, 107 S. W. 739.
This court recognized the principle governing in such cases in the case of Cooper v. State, 86 Ark. 30, where the court said that the jury was not bound to accept all the testimony of any witness, or all of the theory of the State or of the defendant, but may find the truth to lie partly on one side and partly on the other, and that when such is the case, it is right and proper for the court to submit an instruction covering any phase of the evidence which may be fairly deduced partly from one side and partly from the other.
The testimony here which is said to furnish support for the instruction on the question of self-defense is that of the witness Morris. This witness testified that a disagreement arose between Wise and Gibson over the action of Gibson in taking chips out of a jack-pot to pay for whiskey which the parties were drinking. Wise questioned Gibson’s right to-do so, and Gibson became angered and called Wise a “damn crook” and a number of other very vile names, and that Gibson got up from the table at which they had been playing cards and drew his pistol as he did so, and that as Gibson drew his gun Wise “dropped his hand down like that (indicating his hip pocket).”
Giving this testimony of Morris its highest probative value, it would appear that Wise made a demonstration as if he -was about to draw his own weapon, and the testimony shows that he was armed. But it also appears that Wise only did this after he had been vilely abused by Gibson who had his pistol in his hand, and before taking the pistol in his hands he had it in his lap.
The instruction set out was, therefore, incorrect, because it did not take into account the duty of Gibson to abandon the difficulty which he had himself brought on. We have many cases to the effect that one can not bring on a difficulty, and then kill the person whom he has thus assailed and plead self-defense in justification, without having first made an honest attempt, in good faith, to withdraw from the combat. Atkins v. State, 16 Ark. 568; Blair v. State, 69 Ark. 558; Velvin v. State, 77 Ark. 97; Wheatley v. State, 93 Ark. 409; Ferguson v. State, 95 Ark. 428; Taylor v. State, 99 Ark. 576; Manasco v. State, 104 Ark. 397. Having abused Wise and made a threatening demonstration against him, Gibson had no right to fire the fatal shot without having first made the effort required by the law to withdraw from the combat; and, as the. requested instruction wholly ignored this duty on the part of Gibson, no error was committed in refusing it. If appellant wished the law of this subject stated to the jury, he should have asked a correct instruc tion, but no other instruction on this subject was requested.
Finding no prejudicial error, the judgment of the court below is affirmed. | [
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SMITH, J.
Appellant seeks by this appeal to reverse the judgment of the court below imposing a sentence of a year in the penitentiary upon a charge of selling intoxicating liquors.
It is first insisted that error was committed in permitting a deputy sheriff named Hobbs to testify that he raided appellant’s home on June 6,1916, and found three dozen bottles of beer and some whiskey on ice, but the witness was not as positive about the whiskey as he was about the beer; and he also testified that he saw a boy coming out of appellant’s house at the time of the raid with a bottle in his hands.
The indictment was returned on October 6/ 1916, and alleged the sale of the intoxicating liquors to have been made on September 26, 1916, and it is argued that this sale was too remote in point of time from the date of the raid for the facts there discovered to have any relevancy to the crime charged. It is true the State’s-testimony showed a sale of intoxicating liquors on September 26, the date alleged in the indictment; but the State was not limited to the proof of a sale made on that date. A conviction could have been had on proof of a sale made at any time after the sale of intoxicating liquors became a felony and within three years of the date of the indictment. As was said, in answer to the same contention now made, in the case of Springer v. State, 129 Ark. 110, the testimony showed that appellant had provided himself with large quantities of intoxicating liquor, and he had the beer cold and in condition to sell. And we have also said that the State, to secure a single conviction, may offer proof of more than one sale. Dean v. State, 130 Ark. 322; Mason v. State, 127 Ark. 289. The testimony on the part of the State showed the sale of two one-half pints of whiskey, one of which sales had been made at appellant’s home, and the other half pint was sold and delivered near there. The place of these alleged sales is identical with the place testified to by the witness Hobbs, and we can not say that the time was so far removed as to have no relevancy, as showing the business in which appellant was engaged.
Exceptions were saved to the action of the court in permitting an express agent to testify that in June, 1916, a sixty-pound cask of whiskey was received at the express office consigned to appellant, and delivered to Francis White. Objection is made that the testimony does not connect appellant with the receipt of this liquor. It was shown, however, that the package was addressed to appellant and that it was delivered to White “on an order. ’ ’
The court refused to permit one Holloway, a witness for appellant, to testify that Mattie Foster, a witness for the State, habitually hung around the Argenta saloons. It appears, however, that witnesses who claimed to know this witness well testified that she was a bad woman and that from her general reputation for truth and morality they would not believe her on oath; and she herself admitted on- her cross-examination that during the time saloons were operated in Argenta she went there frequently and bought what she wanted. The testimony of the impeaching witness shows that Mattie Foster was a woman of bad character, and her own admissions on cross-examination showed that she was addicted to the use of intoxicating liquors, and no attempt was made by the State to controvert either of these facts, and no error was committed in refusing to admit testimony to the effect that Mattie Foster had hung around saloons in Argenta during the period of their operation. Moreover, the impeaching testimony was properly limited to general reputation and not extended to proof of specific instances of bad conduct.
The court refused to permit appellant to introduce in evidence circuit court records tending to impeach one Luke Wesson by showing that Wesson had been convicted in the circuit court of Hempstead County at the April term, 1913, for three illegal sales of liquor. A witness for the State had testified that Wesson worked for the prohibition people, and that Wesson put up a portion of the money with which the last half pint of whiskey was purchased. In support of this assignment of error, it is argued that the jury might have found that Wesson was interested in obtaining a reward for procuring a conviction, and that the women who testified against appellant were interested in assisting Wesson to earn this reward, and that proof of Wesson’s conviction for selling liquor illegally would show the character of man he was and make it appear more plausible to the jury that the appellant was the victim of a frame-up. A sufficient answer to this contention is that Wesson did not testify at the trial of this case, and had nothing to do with the purchase of the liquor except to furnish a portion of the money with which the last half pint was purchased; and there was no testimony to the effect that Wesson would have received any reward or derive any advantage from a conviction in this case.
It is finally insisted that error was committed in refusing to permit appellant to exhibit his hands to the jury, his counsel having stated, at the time this offer was made, that they were hard, rough and full of- corns. This .offer was made for the purpose of showing that appellant was a laboring man and earned his living by honest toil. He testified that he worked for a transfer company in the city of Little Rock, and had not missed a day from his work in nine years except when he was sick.
The majority of the court is of the opinion that no error was- committed in the exclusion of this testimony, for the reason that the witness had testified in the presence of the jury and the opportunity had been thus af forded for the jury to determine whether appellant presented the appearance of a laboring man or not. Moreover, the State made no attempt to show that appellant was not a laboring man, and it was not denied that he had worked regularly at his employment, and the excluded testimony would have had no relevancy concerning defendant’s guilt.
No error prejudicial to the appellant appearing in the opinion of the majority, the judgment of the court below is affirmed. | [
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WOOD, J.
Appellant is a partnership, engaged in the manufacture of hardwood lumber.
Appellee brought this action against the appellant and also against G-eorge Lane for damages for personal injuries. He alleged that he was in the employ of the appellant and engaged in the work of rafting logs in the St. Francis River; that Lane was the agent of the appellant and that appellee at the time of his injury was under the supervision and direction of appellant’s agent, Lane.
The complaint sets forth the acts of negligence which it is alleged caused the injury.
The appellant answered and denied these alleged acts of negligence, and denied that the appellee was in its employ at the time of his injury. It denied that Lane was its agent at any time for any purpose. It admitted that it was the owner of the logs which were being moved at the time the appellee was injured, and alleged that Lane had contracted with it as an independent contractor to raft logs, for whose acts it was in no wise responsible. Appellant set up the defense of contributory negligence and assumed risk on the part of the appellee. There was a verdict in favor of the appellee against the appellant, and also against Lane, in the sum of $11,285. From a judgment in favor of the appellee for that sum appellant brings this appeal.
The only issues presented here are whether or not Lane was an independent contractor and whether or not the verdict was excessive. It is only necessary, therefore, to state the facts bearing on these issues.
The appellee testified that he was hired by Lane to raft timber. Lane was working for Wheeler, who was the foreman.
Another witness testified that he was working at the log raft in which appellee was hurt. He was. working for Lane and Lane was working for Wheeler as he understood. Lane was in charge of the work and discharged witness from employment.
Another witness testified that he was working at another camp near by where appellee was hurt and shortly afterwards saw the broken cable. Lane told witness that they did not get good stuff up on that job and they sent worn out stuff up there for them to use. Witness had worked for Lane. About one week before he had inquired at the office of Wheeler & Co. and Wheeler told him to go to Lane and he would hire him. Witness went down there and Lane told witness that he would take him if it was all right with Wheeler, then Lane hired witness and Wheeler, paid him. He sent the money to pay witness by Mr. Lane. Lane went down to Madison after the pay and carried witness’ time and got the money. Wheeler never gave witness any money, but he held out witness’ pay one time. Witness may have owed Wheeler a little at the time.
Another witness testified that he was at Lane’s camp shortly after the accident and Lane showed bim the cable that broke. It was an old rotten cable. Lane said it was one they had sent him from the farm that had been used on a stamp puller, that Wheeler had sent him. Witness testified that Wheeler came to his place one morning and requested witness to go and help Lane raft timber. Witness told Wheeler he did not want to interfere with Lane’s work unless satisfactory with Lane. Wheeler replied that it did not matter a damn whether it was satisfactory with Lane or not, that it was his timber and that he wanted to get it out, that the water was falling.
Another witness testified that in the spring of 1915 he was working on the river for Mr. Wheeler. He worked on the same job that Lane worked on. The river was falling and he helped Lane raft some of the timber that was left there. Mr. Wheeler got him to go up there. Wheeler employed him and paid him for his work and witness did not ask Lane anything about going to work on the job. Witness was paid for his work by the thousand.
Another witness testified to the same effect. The above is substantially the testimony on behalf of the appellee on the issue as to whether or not Lane was an independent contractor.
On behalf of the appellant, C. L. Wheeler testified, that he was one of the partners and had the management of the mill and the outside business. About September 1, 1915, he received a letter from Lane in regard to work. He answered the letter on the 10th making Lane a proposition and he received from him the following letter:
“Will drop you. a few lines in answer to yours of the 29th. Will say that I can do the rafting if we can agree on a deal, though I am not able to fit up to do the work by contract, without you would help me. I would have to have .a team of some kind to put the logs in the water with, and a house boat, tools, in fact everything most. If you wouldn’t want to do that, I would take the job on a salary if that would suit you any better. Would like to do your work if we can agree on .a deal at all. You let me hear soon as you can just the best you can do, either way. So I can figure on it. I have several offers to raft but would be out of work soon as the river got down. I would like to have some work all the year if you can fix me up, so will close hoping to hear from you soon.”
Wheeler answered the above letter as follows:
“Your letter received and will say that I will give you $1.00 per M. for rafting the oak, and 75c for elm, ash, cypress and gum. The oak is to have two binders and be out of good elm, pecan or oak. The elm and cypress can have only one binder when rafted by itself. May not have enough floaters to carry all of the oak and will have to use float boats. Will pay $1.00 for loading this, same as if rafted. There should be about three million feet and if this suits you, come down and commence building your houseboat. We will furnish you the lumber and tools and take a mortgage on the boat. The binders that you use are to be bored.
‘‘I think that you can make some money out of this job as it will last two or three years, and you should have a boat so you could board your men right on the job. There is a log team and wagon here that we can buy. If this suits you come at once and we will get busy, as water is coming up.”
The lumber and tools in the letter referred to lumber and tools for the house boat. Lane accepted appellant’s proposition and in a few days came down and went to work and continued to work for about two years under that contract and was operating under it when appellee was hurt. Witness never made any other contract with Lane. Lane bought a house boat. Appellant sent him money on his rafting contract as the work progressed at so much per thousand feet. Lane paid his own men and bought his own supplies. Appellant would sometimes take supplies to him as it went up after the logs. Appellant loaned Lane a pull boat. Lane supplied the tools for it and kept it in repair. Witness stopped once when the boat was out of repair to see what was the matter with it, but did not undertake to control* supervise, or direct Lane on the job of rafting. Lane ran the job himself. Lane hired the men and discharged them and paid them for their work.
Witness was asked if on one occasion he did not go up there and tell Lane the work was getting along too slow and that witness wanted him to put on another erew. Witness replied that he might have done so.
Wheeler further testified that it did not furnish Lane cable after he took the pull boat. Appellant paid Lane $1 per thousand oak and 75 cents on soft wood as he rafted it. Witness did not know the appellee until after he was hurt and did not know that he was at work on the job. Witness stated that he employed others to assist Lane in putting the logs in the river. But this was done with Lane’s consent in order to get the logs in the water before it went down. Witness stated that the letters referred to constituted a written contract with Lane. He had no other contract with him. Lane accepted witness ’ proposition, but his acceptance was not in writing. Under the contract Lane was to raft about 3,000,000 feet of logs. It was to be done during the rafting season. Witness testified that nearly all of this kind of work was done by the thousand, and the contract that he had with Lane was the same kind that he made with all of his men for this kind of work. Witness testified that it was Lane’s practice to notify appellant’s office about how much money he would need to meet his pay roll and appellant would send him what he asked for. Witness did not know what men he had on his pay roll.
The testimony of Lane substantially corroborated in all material particulars the testimony of Wheeler. Witness Lane identified what purported to be a statement of his account kept by appellant showing the number of feet of logs that he had rafted and showing that appellant had paid him for the .same, at so much per thousand feet.
The testimony of Wheeler and Lane on direct examination was to the effect that everything furnished Lane except the pull boat and its equipment was purchased by Lane, but on cross-examination Lane testified that appellant furnished him money with which to buy certain mules.
Lane was asked if he ever paid for them and answered that he turned a couple of the mules back, and got one of them drowned, and that appellant did not charge him .anything for the one that was drowned and the mules that he returned appellant sold to other parties.
The testimony shows that when appellee was injured he was in a boat on the water raising a log to be rafted. That appellee’s injury was caused by the breaking of the pull cable which Lane had fastened. It was an old looking piece of cable, showed rust, and some of the wires had been worn and broken.
At appellant’s request the jury were required to answer whether or not George Lane was an independent contractor, and they answered that he was not.
Learned counsel for the appellant correctly state the effect of our own and other authorities to be, “That where the defendant lets out work to a contractor and the work is not in itself unlawful and intrinsically dangerous and no negligence is committed in the selection of the contractor, and the company only exercises control over the work to the extent of general supervision and inspection to the end that it may determine whether the work is being done according to requirements and specifications of the contract, but has no other control over the work nor the power to choose, direct and discharge the employees of the contractor, the defendant is not liable for injuries due to negligence of the contractor or his servants, the relation of master and servant not existing between them and the defendant.” St. Louis,, I. M. & S. Ry. Co. v. Gillihan, 77 Ark. 551, 553; White River Ry. Co. v. B. & W. Tel. Co., 81 Ark. 195, 200; Ark. Land & Lumber Co. v. Secrist, 118 Ark. 561. See also other cases in appellant’s brief.
Says Judge Elliott: “An independent contractor may be defined as one who, in the course of an independent occupation, prosecutes and directs the work himself using his own methods to accomplish it, and represents the will of the company only as to the result of his work. ’ ’ 2 Elliott on Railroads, p. 863, § 1063.
“An independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of the work.” 2 Words & Phrases, p. 1034, and many other cases there cited.
(1) This is in accord with the definition given by Judge Elliott and quoted by this court in Railway Co. v. Gillihan, supra. Applying the definition to the facts of this record, there was no error in the ruling of the court in refusing to grant appellant’'S prayer for instruction telling the jury that under the uncontradicted evidence Lane was an independent contractor.
The testimony was sufficient to warrant the jury in finding that the relation which Lane sustained to the appellant was that of an agent or servant rather than that of an independent contractor.
(2) It could serve no useful purpose to discuss the evidence in detail. It is set forth in the statement .and speaks for itself. It proves circumstances that were proper for a jury to consider on the issue as to whether or not Lane was an independent contractor. Though we may differ with the jury as to the correctness of its conclusion, the issue here is not what we think the verdict of the jury should have been but whether or not there was substantial evidence to sustain tbe verdict as rendered. St. L. & S. F. R. Co. v. Kilpatrick, 67 Ark. 47-62.
Applying the above rule, it can not be said there was no evidence of a substantial character to sustain the verdict.
“The expression, ‘an independent contractor,’ within the popular understanding which the words import, is wholly descriptive. The expression serves merely to point out one of a class, and when so used it may be conceded that no words of definition are needed.. But in the law of negligence the expression is used, not merely in a descriptive sense, but as well to designate a relationship, in the presence of which, when established, the law undertakes to prescribe distinctive rights and liabilities. It is for the court, then, as a matter of law, to define the relationship, and for the jury to make finding of the fact as to its existence.” Overhouser v. Am. Cereal Co., 128 Iowa, 580.
Appellant’s prayers for instruction invaded the province of the jury, and the court did not err in refusing them. Some of these prayers assumed that certain facts had been proved which were in'dispute and told the jury that such facts constituted Lane an independent contractor.
Other prayers told the jury that if certain facts were proved such facts did not make Lane a servant of the appellant.
All these instructions were erroneous. They did not ask the court to define the relation and leave the jury to say as to whether or not under the evidence that relation existed.
Appellant contends that the contract between Lane and itself was in the form of a letter written by Wheeler, containing the terms on which he would have Lane do the work, and that Lane accepted these terms. The court in its instruction No. 6 told the jury that if it found such to be the case to render a verdict in favor of Wheeler & Co. No written acceptance by Lane of the terms of the letter of appellant was shown, and the verdict and the spe cial finding of the jury on the interrogatory propounded show that the jury found that the letter did not evidence the contract which was orally entered into between them.
The instructions given by the court on its own motion submitting the issue as to whether or not Lane was an independent contractor were as favorable to appellant as it had the right to ask, and fully covered appellant’s contention.
The following are instructions Nos. 6 and 7 given by the court on its own motion:
(6) You are instructed that if you find from the evidence that Wheeler & Co. employed Lane to raft the logs at a fixed price per thousand feet, and that the letter in evidence was the contract accepted by Lane, and that the work was done by Lane under that contract substantially, then defendant, J. W. Wheeler & Co., is not liable, notwithstanding the fact that the plaintiff was injured, and notwithstanding the fact that the use of the wire cable around the stump was an act of negligence, if you should so find.
(7) You are instructed that the fact that Wheeler loaned the pull boat and cable to Lane is not enough to render J. W. Wheeler & Co. liable, and if they are not liable under the instructions as stated to you, they would not be liable on account of loaning the boat and its equipment to Lane.
.Appellant contends that the court erred in refusing, among others, the following instruction: ‘ ‘ The jury are instructed that even if Lane stated out of court that he had no contract, the effect of that evidence must be confined to Lane’s case, and that evidence is not to-be considered by the jury on the question of the liability of Wheeler & Co.”
(3) The court did not err in refusing this prayer for the reason that Lane was a witness as well as a defendant. When he was on the witness stand appellant did not object to his testimony on the ground that no foundation had been laid for his impeachment, but on the contrary permitted his testimony to go to the jury.as if such foundation had been laid. Since the testimony tend ing to prove Lane’s contradictory statements went to the jury without objection from appellant, it was not in an attitude to ask that Lane’s statement out of court “that he had no contract” be confined to Lane’s case. Such .statement was contradictory of his testimony and tended to impeach Lane. He wa-s a very material witness. His credibility was for the jury, and it had a right to consider this testimony in determining the issue of liability not only of Lane but also of appellant.
(4) The appellant contends that the verdict was excessive. The appellee testified that at the time of his injury he was earning from $2.50 to $3 per day. Appellee was forty-six years old, and his expectancy as shown by the evidence was twenty-two years. The testimony of the physician showed that the injury was to the vertebrae of the neck and about the .skull, a fracture of the spine. It was a permanent injury, that would affect the appellee in doing labor that would necessitate the use of his neck and shoulders in ■ lifting. Appellee supposed that he could now earn a dollar a day. He had always done hard work, mostly in timber, and could not do that now at all. He had to turn his body when he looked around. Could move his head but little. It was a year after he was injured before he could do anything at all. He was confined to his bed from the time of injury for something like two months and “suffered about as bad as could be.” Under such circumstances it can not be said that the verdict for the sum returned was excessive.
There is no reversible error in the record, and the judgment is therefore affirmed. | [
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WOOD, J.,
(after stating the facts). The only contention made by the appellant here is, that the verdict was contrary to the evidence.
Section 3081 of Kirby’s Digest provides as follows:
“Any person absenting himself beyond the limits of this State for five years successively shall be presumed to bo dead, in any case in which his death may come in question unless proof be made that he was alive within that time. ’ ’
The phraseology of the statute is somewhat ambiguous but the trial court correctly interpreted its meaning in its instruction No. 2. “Any person” as used in this statute means any person who is a resident of this State and who absents himself from his home or residence beyond the limits of the State for a period of five successive years and who has not been heard from by near relatives, friends, or neighbors, those who would naturally make inquiry concerning his whereabouts and who would most likely receive communication from him and be in a position to know whether or not he was living. If he has not been heard from by these or others, his death will be presumed unless there is proof to the contrary.
In view of the nomadic habits of H. M. Wilks as disclosed by the evidence it can not be said as a matter of law that he had anything like a permanent home or residence in this State. It was a question for the jury under the evidence adduced as to whether or not H. M. Wilks was a resident of the State in the first place, and in the second place as to whether or not, if a resident, he had been absent from the State for a period of five successive years without being heard from by those who would most likely hear from him.
The proof on the part of the appellant did not show either of these facts conclusively.
The issues were, therefore, for the jury, and the judgment is correct, and is affirmed. | [
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DONALD L. CORBIN, Justice.
| Appellants, The Ralph Loyd Martin Revocable Trust Declaration Dated The First Day Of April 1994; Ralph Loyd Martin,. Trustee Of The Ralph Loyd Martin Revocable Trust Declaration Dated The First Day Of April 1994; The Festus Mary Martin Revocable Trust Declaration Dated The First Day Of April 1994; and Festus Mary Martin, Trustee Of The Festus Mary Martin Revocable Trust Declaration Dated The First Day Of April 1994 (collectively, “the Martin Trusts”), appeal the order of the White County Circuit Court |?directing that Appellee Arkansas Midstream Gas Services Corporation (“Midstream”) take possession of a certain part of the Martin Trusts’ land pursuant to the power of eminent domain to construct and maintain a pipeline for the gathering of natural gas. On appeal, the Martin Trusts challenge the constitutionality of the delegation of the power of eminent domain to Midstream. Jurisdiction is properly in this court pursuant to Ark. Sup.Ct. R. 1 — 2(a)(1) (2010). We have recently rejected the arguments raised in this appeal and accordingly affirm the order of the circuit court. .
Midstream is an Arkansas corporation presently engaged in the construction of a gathering pipeline for the transmission of natural gas across certain lands in White County. It is a wholly owned subsidiary of Chesapeake Energy Corporation, which is an Oklahoma corporation that engages in the exploration and production of oil and gas in the Fayetteville Shale formation. The Martin Trusts own approximately 150 acres of real property located in Section Twelve (12), Township Seven (7) North, Range Eight (8) West, White County. According to the Martin Trusts, the property has long been held by the Martin family and maintained in pristine form; the Trusts’ land contains a pond, a creek, and many large and aged hardwood trees, as well as an abundance of various wildlife.
Midstream attempted to negotiate a right-of-way agreement with the Martin Trusts for the purpose of constructing and maintaining a natural gas gathering pipeline across a portion of the Martin Trusts’ land. The Martin Trusts maintained below that the proposed pipeline would damage the land irreparably because it would require the removal of 100-year-jold3 trees that provide a privacy screen. After Midstream’s negotiations with the Martin Trusts proved unsuccessful, Midstream relied on the authority of the Public Utilities Code, Ark.Code Ann. § 28-15-101 (Repl. 2002), and the Eminent Domain Code, Ark. Code Ann. § 18-15-1303 (Repl.2003), and petitioned the White County Circuit Court on June 2, 2008, to assert the power of eminent domain to condemn a portion of the Martin Trusts’ property to acquire a permanent pipeline easement of sixty feet and a temporary construction easement of fifteen feet on the north side of the permanent easement.
On July 28, 2008, the Martin Trusts moved to dismiss Midstream’s eminent-domain action, alleging that Midstream did not have the authority to exercise the right of eminent domain for two reasons: (1) because Midstream was seeking to acquire property for private rather than public use in violation of the Arkansas Constitution, article 2, section 22; and (2) because section 23-15-101 was unconstitutionally void for vagueness in that it did not contain any legal standards to determine whether a pipeline is being constructed by a common carrier for a public purpose.
On July 31, 2008, the circuit court held a hearing on the motion to dismiss. At that hearing, the circuit court also heard arguments on two other eminent-domain petitions filed by Midstream. In one of those cases, which has since been affirmed on appeal to this court, Smith v. Arkansas Midstream Gas Services Corp., 2010 Ark. 256, 377 S.W.3d 199, Midstream had sought a declaration from the Arkansas Public Service Commission (“PSC”) that a certificate of convenience and necessity (“CCN”) was not required for the construction and | ¿operation of natural gas gathering pipelines. Those proceedings resulted in a declaration that “the gathering pipeline system Arkansas Midstream is proposing to build and operate in White County in this matter is not a pipeline system that falls within the regulatory ambit of the Arkansas Public Service Commission insofar as a CCN is required for it to be constructed and operated.” Thus, for purposes of the hearing on the Martin Trusts’ motion to dismiss, the parties in the present case entered into a stipulation of facts, which was based in part on the facts stipulated to in Midstream’s declaratory proceedings before the PSC in the Smith case. The parties sought and received permission from this court to supplement the record in this case with the PSC proceedings in the Smith case.
After the hearing on the Martin Trusts’ motion to dismiss, the circuit court took the matter under advisement and then issued a letter ruling on August 7, 2008, finding that Midstream had the constitutional and statutory right to condemn a portion of the Martin Trusts’ private property for the public use of gathering natural gas for shipment to larger pipelines. The Martin Trusts moved for a stay of that ruling, and after conducting a hearing on that motion, the circuit court entered its written order containing its findings of fact and conclusions of law on December 18, 2008.
In its December 18 order, the circuit court reiterated its finding that Midstream had the constitutional and statutory power of eminent domain to condemn the Martin Trusts’ private property for public use, and that the gathering of natural gas for shipment to larger pipelines carrying gas to market was a public use. Accordingly, the order granted Midstream |5the immediate right of entry onto, and the possession of, the sixty-foot permanent easement and the fifteen-foot temporary easement on the Martin Trusts’ land as requested in Midstream’s petition. The order directed Midstream to tender $15,850 into the registry of the court as a just-compensation deposit and granted the Martin Trusts a jury trial to determine just compensation. In addition, the order also granted the Martin Trusts’ motion for supersedeas and stayed the order of possession pending appeal, on condition that the Martin Trusts post a supersedeas bond of $25,000 to protect Midstream from any damages sustained by the delay of the pipeline.
The Martin Trusts appealed to this court, but because the order failed to set out the factual underpinnings as to why a hardship or injustice would result if an immediate appeal were not permitted, we dismissed without prejudice for lack of jurisdiction due to noncompliance with Ark. R. Civ. P. 54(b)(1). See Ralph Loyd Martin Revocable Trust v. Ark. Midstream Servs. Corp., 2009 Ark. 563, 2009 WL 3789087. An amended order in full compliance with Rule 54(b) was entered on December 16, 2009. The Martin Trusts now assert that the circuit court erred in ruling that its property was taken in a manner consistent with the Arkansas Constitution. The Martin Trusts make two arguments in support of this assertion, both of which we have recently rejected in similar cases.
For its first point on appeal, the Martin Trusts contend that the circuit court erred in ruling that the General Assembly had properly delegated its power of eminent domain to Midstream for the purpose of constructing a pipeline for the gathering of natural gas. The RMartin Trusts argue that the delegation of the sovereign’s eminent-domain power to pipeline companies in sections 23-15-101 and 18-15-1803 are “utterly without any standard, required use, or purpose” and therefore unconstitutionally vague in violation of the right to due process. Specifically, the Martin Trusts argue that section 23-15-101 does not provide any fixed standard for determining what is a “pipeline company,” and fails to distinguish those companies laying pipe for a wholly private interest from those laying pipe for public use. The Martin Trusts argue further that the statute fails to even require that the property taken be used for the construction of a pipeline. The vagueness issue caused by this lack of standards, argue the Martin Trusts, is exacerbated by the lack of regulation and opportunity for comment by the landowners. Finally, relying on Justice Hickman’s dissent in Young v. Energy Transportation Systems, Inc. of Arkansas, 278 Ark. 146, 644 S.W.2d 266 (1983), the Martin Trusts assert that this standardless delegation of the eminent-domain power will lead to abusive and unconscionable takings of private property.
This court has recently rejected a landowner’s void-for-vagueness challenge to section 23-15-101 in Smith, 2010 Ark. 256, 377 S.W.3d 199. We did so on the basis that the landowners making the vagueness challenge lacked standing. We stated as follows:
The Smiths’ vagueness argument is without merit. As an initial matter, we question whether the Smiths have standing to assert a vagueness challenge to section 23-15-101. This court has recognized that a law is unconstitutionally vague if it “either forbids or requires the doing of an act in terms so vague that persons of ordinary intelligence must necessarily guess at its meaning and differ as to its application.” Benton County Stone Co., Inc. v. Benton County Planning Bd., 374 Ark. 519, 523, 288 S.W.3d 653, 656 (2008). In the instant case, section 23-15-101 is a delegation of the power of eminent domain to pipeline companies, and by its express |7Ianguage, it neither requires nor forbids the Smiths to act in any way. In general, a party lacks standing to challenge a statute for vagueness unless it applies to his or her own conduct. See, e.g., United States v. Woods, 915 F.2d 854, 862 (3d Cir.1990) (“[Ojutside of the First Amendment context, a party has standing to raise a vagueness challenge only if the challenged statute is vague as to that party’s conduct.”); cf. Kale v. Arkansas State Medical Bd., 367 Ark. 151, 157, 238 S.W.3d 89, 93 (2006) (‘When challenging the constitutionality of a statute on the grounds of vagueness, the individual challenging the statute must be one of the ‘entrapped innocent,’ who has not received fair warning.”). Again, section 23-15-101 neither requires nor forbids the Smiths to act in any way. For this reason, the Smiths lack standing to assert that section 23-15-101 is vague as to their conduct, and we will not address this point.
Smith, 2010 Ark. 256, at 12-13, 377 S.W.3d at 206-07.
As with the Smiths in the Smith case, section 23-15-101 neither requires nor forbids the Martin Trusts to act in any way in the present case. Because the challenged statute in no way applies to the Martin Trusts’ conduct, the Martin Trusts have no standing to challenge section 23-15-101 on the basis that it is void for vagueness under due-process standards. As in Smith, we do not address this point any further.
For their second point on appeal, the Martin Trusts contend that the circuit court erred in determining that the gathering pipeline is a public use of the Martin Trusts’ property. In support of this argument, the Martin Trusts rely primarily on City of Little Rock v. Raines, 241 Ark. 1071, 411 S.W.2d 486 (1967). The Martin Trusts acknowledge that this court has recently rejected this “private use” challenge in Linder v. Arkansas Midstream Gas Services Corp., 2010 Ark. 117, 362 S.W.3d 889. However, the Martin Trusts contend that Linder is distinguishable from the present case because there.is no record in this case that Midstream |8will operate the pipeline in question as a common carrier or do business with anyone who seeks to use the pipeline. This attempt to distinguish Linder is simply without merit.
Before addressing the merits of the Martin Trusts’ attempt to distinguish Lin-der, however, we pause to emphasize a point we first made in footnote three of the Linder opinion. That point is, that although “from time to time the parties and even our case law speak in terms of public purpose, the Arkansas Constitution uses the term public ‘use.’ See Ark. Const. art. 2, § 22. We are guided by our Constitution in this opinion.” 2010 Ark. 117, at 7 n. 3, 362 S.W.3d at 893 n. 3. Thus, we reiterate today that our constitution’s requirement is that the power of eminent domain be invoked for public use.
The record in this case reveals that the parties stipulated to the following pertinent facts:
The subject gas transmission line project, (“Kitts Line”) will cross the [Martin Trusts’] property in the Southwest Quarter of Section 12, Township 7 North, Range 8 West, for the purpose of connecting one existing and one additional proposed gas production wells located in Section 7, Township 7 North, Range 7 West, to the pipeline. The Kitts Line also will connect the Patricia Barger proposed well in Section 18, Township 7 North, Range 7 West. The pipeline will then terminate at a major transmission pipeline located in Section 11 of Township 7 North, Range 8 West. As to the existing and proposed gas production wells which will be connected to the Kitts Line (and which are previously unserved by any pipeline), there are several working interest owners (as to which Chesapeake Operating, Inc. is only one) who own the gas transported through the Kitts Line and there are multiple royalty owners who will receive royalties from the gas sold from the sale of the gas transported through the Kitts Line. As the Kitts Line will gather gas from several gas production units, the line cannot be constructed under the lease rights applicable to any one governmental section.
(Emphasis added.)
|9These facts are remarkably similar to the facts in Linder and Smith, as all three cases involve a gathering pipeline for use by multiple royalty owners and several working-interest owners, including but not limited to, Midstream’s parent corporation, Chesapeake. These facts were relevant to this court’s conclusions in Linder and Smith that the gathering pipelines in those cases were indeed for public use. After reviewing over 100 years of case law, this court said the following:
We conclude, in light of this case law, that section 23-15-101 is not unconstitutional as applied to the facts in the instant case. Section 23-15-101 delegates the power of eminent domain to all pipeline companies operating in this state as common carriers. As common carriers, the pipeline companies are required by law “to carry for all alike, and not at [their] option.” See Alpha Zeta Chapter of Pi Kappa Alpha Fraternity v. Sullivan, 293 Ark. 576, 740 S.W.2d 127 (1987) (quoting Arkadelphia Milling Co. v. Smoker Merck Co., 100 Ark. 37, 139 S.W. 680 (1911)). Thus, section 23-15-101 affords the public the right to enjoy the use of a taking pursuant to this section, not by permission, but of right. In other words, “the law gives all the right to use it on equal terms.” Ozark Coal [Co. v. Pennsylvania Anthracite R. Co., 97 Ark. 495, 134 S.W. 634 (1911) ].
Furthermore, it makes no difference that only “a collection of a few individuals” may have occasion to use the pipeline after its completion. Again, the character of a taking, whether public or private, is determined by the extent of the right to use it, and not by the extent to which that right is exercised. Ozark Coal, supra. “If all the people have the right to use it, it is a public way, although the number who have occasion to exercise the right is very small.” Ozark Coal, 97 Ark. at 495, 134 S.W. at 634 (quoting Phillips v. Watson, [63 Iowa 28,] 18 N.W. 659 (Iowa 1884)). This court has clearly recognized that in determining whether the taking of property is necessary for public use, not only the present demands of the public, but those which may be fairly anticipated in the future, may be considered. Pfeifer [v. City of Little Rock ], 346 Ark. [449,] 460, 57 S.W.3d [714,] 72[1] [(2001)]; Woollard v. Ark. State Highway Comm’n, 220 Ark. 731, 249 S.W.2d 564 (1952) (citing Rindge Co. v. County of Los Angeles, 262 U.S. 700 [43 S.Ct. 689, 67 L.Ed. 1186] (1923)).
... The right of members of the public to use the pipeline to transport natural gas, whether currently or in the future, determines the character of the usage. By [ inexercising the right of eminent domain under section 23-15-101, Midstream has elected to operate its pipeline as a common carrier, giving the public the equal right to use the pipeline to transport natural gas. As the Trow-bridge affidavit states, there are “several working interests” that will use the pipeline upon completion as well as “multiple other potential working interests (including unleased surface owners who may elect to participate in the drilling of wells in the involved sections).” Should Midstream or its successors at any point deny the use of the pipeline to those having occasion to use it, the condemnation will be revoked. See St. Louis Iron Mountain & S. Ry. v. Petty, [57 Ark. 359, 21 S.W. 884 (1893) ].
Linder, 2010 Ark. 117, at 12-14, 362 S.W.3d at 896-97.
This court affirmed Linder’s holding regarding public use in Smith. The Smith court relied on the above-quoted language from Linder and concluded as follows:
As in Linder, it is clear that Midstream plans to operate its natural gas pipeline as a common carrier, meaning that the public has the equal right to use the pipeline to transport natural gas. Because of this, section 23-15-101 has not granted the power of eminent domain to Midstream for a private use in violation of Article 2, section 22 of the Arkansas Constitution.
We hold, as we did in Linder, that section 28-15-101 is not unconstitutional as applied to the facts of this case. By exercising the power of eminent domain as a common carrier under section 23-15-101, Midstream must afford the public the equal right to use the pipeline to transport natural gas. We acknowledged in Linder that “the character of a taking, whether public or private, is determined by the extent of the right to use it, and not by the extent to which the right is exercised.” Linder, 2010 Ark. 117, at 13, 362 S.W.3d at 897; see also Ozark Coal Co. v. Pennsylvania Anthracite R.R. Co., 97 Ark. 495, 134 S.W. 634 (1911) (“If all the people have the right to use it, it is a public way, although the number who have occasion to exercise the right is very small.”). Not only the present demands of the public, but those which may be fairly anticipated in the future, are considered in determining whether the taking of property is for a public use. See Linder, supra. The same holds true for the case at hand.
Smith, 2010 Ark. 256, at 9-10, 377 S.W.3d at 205-06.
Just as in Linder and Smith, the record in the present case establishes that, by exercising the right of eminent domain under section 23-15-101, Midstream has again elected to operate lnits gathering line as a common carrier, thereby giving the public the equal right to use the pipeline to transport natural gas to market. Stated another way, when Midstream elects to assert the power of eminent domain delegated in section 23-15-101, by operation of that statute, Midstream is a common carrier and is thereby subject to the public-use requirement expressed in article 2, section 22 of the Arkansas Constitution. The stipulated facts in the present case establish that the Kitts Line will be used by several working-interest owners other than Chesapeake and by multiple royalty owners, and that all working-interest owners using the line will pay a common charge of sixty-five cents per MMBTU for pipeline services. Accordingly, and consistently with Linder and Smith, we conclude on the facts here presented that the public has a right to use the Kitts Line and, therefore, that section 23-15-101 has not granted the power of eminent domain to Midstream for private use in violation of the Arkansas Constitution. The circuit court did not err in finding that the Kitts Line is for public use.
As a final matter, we note that Linder involved a constitutional challenge to section 23-15-101 only as applied to the facts of that case, and that in the present case, the Martin Trusts advance a facial challenge to the statute. While the Martin Trusts are correct that Linder did not involve a facial challenge but solely an “as applied” challenge to section 23-15-101, the Smith case did present a facial challenge to the statute, which we rejected. We stated as follows:
The Smiths also mount a facial challenge to section 23-15-101 arguing that “its plain language would allow for a delegation of the power of eminent domain to take private property for a private use.” The Smiths then attempt to demonstrate, 112hypotheticalIy, how section 23-15-101 could be applied in an unconstitutional manner.
This court has said that “[a] facial invalidation of a statute is appropriate if it can be shown that under no circumstances can the statute be constitutionally applied.” Linder v. Linder, 348 Ark. 322, 349, 72 S.W.3d 841, 856 (2002) (emphasis in original); McDougal v. State, 324 Ark. 354, 360, 922 S.W.2d 323, 326 (1996) (one cannot challenge a statute “on the ground that it may conceivably be applied in hypothetical situations not before the court”); see also Los Angeles Police Dep’t v. United Reporting Publishing Corp., 528 U.S. 32, 38 [120 S.Ct. 483,145 L.Ed.2d 451] (1999) (“The traditional rule is that ‘a person to whom a statute may constitutionally be applied may not challenge the statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the court.’ ”). Because we hold that section 23-15-101 has been constitutionally applied to the facts of this case, we further hold that a facial invalidation of section 23-15-101 cannot obtain.
Smith, 2010 Ark. 256, at 10-11, 377 S.W.3d at 205-06.
Likewise, because we have determined that section 23-15-101 was constitutionally applied to the Martin Trusts, the Martin Trusts cannot now be heard on a claim that the statute may conceivably be applied unconstitutionally to others in situations not before this court. See Smith, 2010 Ark. 256, 377 S.W.3d 199. This is true, regardless of whether the facial challenge is asserted in the context of the private-versus-public-use argument advanced in Smith, or in the context of the vagueness argument, as advanced presently by the Martin Trusts. Moreover, if, as we have previously concluded, the Martin Trusts have no standing to challenge section 23-15-101 as void for vagueness because the statute does not regulate any of the Trusts’ conduct, it follows that the Martin Trusts likewise have no standing to advance a facial challenge to the vagueness of the statute.
In summary, we observe that in Linder and Smith, we have recently rejected the arguments raised in the present appeal by the Martin Trusts. Those cases are controlling of | iathe issues presented in this case. The record in this case clearly demonstrates that Midstream will construct and operate the gathering line as a common carrier and that it -will be used by multiple royalty owners and working-interest owners who will pay the same rate. Accordingly, we find no error in the circuit court’s conclusion that Midstream’s use of the eminent-domain power granted to pipeline companies in section 23-15-101 to condemn the Martin Trusts’ property amounts to a public use. The order appealed is affirmed.
Special Justice NATE COULTER joins in this opinion.
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ROBERT J. GLADWIN, Judge.
hDr. Clarence Jay Arendall appeals his April 1, 2009 conviction in Crawford County Circuit Court on two counts of second-degree sexual abuse. On appeal, he contends that the jury’s verdict was not supported by sufficient evidence; that the trial court abused its discretion in denying his motion to sever the two charges; and that the trial court abused its discretion in allowing nine witnesses to testify and excluding appellant’s proffered evidence regarding one victim’s hot-check charges pursuant to Rule 404(b) (2009) of the Arkansas Rules of Evidence. We affirm appellant’s conviction.
Statement of Facts
A felony information was filed April 1, 2008, alleging that appellant committed two counts of sexual assault on or about February 13 and 14, 2008, in violation of Arkansas Code Annotated section 5-14-125 (Supp.2009). Prior to trial, appellant filed a motion to exclude | ¿witnesses, a motion to sever offenses, and a motion to exclude Rule 404(b) witnesses. At the pre-trial hearing, the trial court denied the motion to sever, the motion to exclude Rule 404(b) witnesses as to those witnesses who were patients, and an oral motion to admit evidence of a pending felony overdraft case against one of the victims under Rules 607 and 609 (2009) of the Arkansas Rules of Evidence.
At trial, Brett Hartley, an Alma police officer, testified that he took the first report against appellant on July 26, 2007, and referred that victim to the medical board. A second complaint against appellant was filed by Charlotte Adams on February 13, 2008. On March 26, 2008, Debra Davis filed the third complaint against appellant. None of the three victims were allowed to read the others’ statements. They did not know each other and had no connection to each other, but each of their statements was alike. When the police department allowed a television broadcast of their investigation and a warrant was issued for his arrest, seventeen other reports against appellant were made, and appellant was arrested on March 31, 2008.
Charlotte Adams testified that appellant had been her family’s doctor, and she had seen him for pneumonia, back problems, and the like. On February 13, 2008, she saw appellant for complaints related to her lower back and right leg. Appellant asked Ms. Adams to stand up while he remained sitting on his stool, which had wheels. He moved around and felt Ms. | ^Adams’s lower back, then reached around her waist and tried to unbutton her pants. He asked her to unbutton them, and when she complied, he pulled them down to her knees. She did not have on underwear, and there was no one else in the room. She did not remember if he wore gloves, but he did feel her lower back and buttocks, running his hand from her knee to the inside of her thigh, touching her vagina, then sliding it back down. He put his hand on her clitoris, rubbed four or five times, and said that he did not want to do anything inappropriate. He wheeled in front of her and said, “Nice shave job,” then laughed, and said that he should bend her over the table. He laughed again, felt her knee, and started to lift up her shirt. Ms. Adams pulled her shirt down and began pulling her pants up. She said she felt as if it were a dream; she did not scream; she was in shock; she did not tell him to stop; and she just froze. When she pulled up her pants, she said that appellant looked scared. She said she was angry when she realized what was happening and that appellant offered to get her sample drugs.
Ms. Adams walked out, paid, and left. She said she cried in her truck, and that nothing like this had ever happened before in the years she had known him. She drove straight to the police department to file a report. She went back a few days later to make a written statement for Detective Hartley. She agreed to help the police investigate and made two telephone calls to appellant. She went into appellant’s office on March 5, 2008, wearing a recording device. She acknowledged that her attorney filed a civil lawsuit against appellant on March 1, 2008, seeking $250,000 in damages, plus punitive damages. She also admitted to having seen Debra RDavis’s statement at appellant’s medical-board hearing where she met Ms. Davis in June 2008. Finally, she said that Capital One had filed a $3700 judgment against her. She told the trial court that she did give appellant consent to give her an exam, but not to touch her clitoris, the inside of her thighs, or “up by her vagina.” She further testified that she did not give him permission to say nasty things to her.
Officer Doug McAlister, a senior special agent with the Criminal Investigation Division of the State Police, testified that he was called to assist Detective Hartley with the investigation. He and Detective Hart-ley arranged for Ms. Adams to make telephone calls to appellant and to wear the recording device when she went to appellant’s office. The transcript of the meeting between Ms. Adams and appellant was admitted as evidence.
Debra Davis testified that she had taken her son and husband for appointments with appellant and went to see him herself on February 14, 2008, for lower-back and shoulder pain. Appellant told Ms. Davis to stand up, unbuttoned her pants and belt, and sat down on the chair behind her. He was not wearing gloves, and he ran his fingers down the side of her legs, pulling down her pants and underwear. When Ms. Davis tried to pull her pants back up, he told her to wait. She stood back up, and appellant put his hands on the outside and the inside of her leg, rubbing back and forth against her vagina and thigh. He asked her if it hurt, and she told him no. He said, “Dang girl you got a nice butt.” Ms. Davis turned to the side and pulled her pants up. He commented that even though she had children, she had no stretch marks. Ms. Davis opened the door and called her three-year-old son into the room | ^because she was afraid. Appellant asked her questions about whether she had had a pap smear, and suggested she come back to him and get one. He wrote her a prescription and told her to come back in a month. She did not make another appointment. She eventually called an attorney, who contacted police. Her attorney filed a lawsuit against appellant but did not seek a specific sum of money. Ms. Davis contacted the medical board and she filed a police report on March 26, 2008. She reiterated that she did not give appellant permission to touch her vagina.
Pursuant to Rule 404(b), the State called several witnesses that had been patients of appellant. Each testified to similar scenarios that occurred while being examined by appellant as occurred during the exams complained of by Ms. Davis and Ms. Adams.
The State called Dr. Robert Wendell Ross, a family-practice doctor for thirty-nine years, who explained how his office runs, including the procedures with nurses, gowns, and paper sheets for covering. He testified that he would never disrobe a female himself, that he had never unbuttoned someone’s pants and pulled them and their underwear down, and that there is always a paper sheet that lays across the patient’s lap. He said he could not think of a reason why he would need to examine a woman’s vagina in connection to lower-back pain. He testified that he would refer someone to a specialist if anti-inflammatory medicines and muscle relaxers did not help their lower-back pain. He said he has never had a woman remove her panties for a back exam, and that he would not examine a woman’s breasts if she | fihad come to him with a sore throat. He said that it would be inappropriate not to have a nurse in the room during an examination.
When the State rested its case, appellant moved to renew his motion to exclude two Rule 404(b) witnesses that had not been disclosed to him in a timely manner prior to trial, and the trial court denied the motion. Appellant then moved to exclude the remaining 404(b) witnesses, arguing that the evidence was not admissible to show intent, motive, plan, or scheme. He argued that, other than giving the laundry list, the State had never specifically stated its basis for allowing the evidence under Rule 404(b). He claimed that the witnesses testified only for the purpose of showing that he was a bad character and not for any reason listed in 404(b). The trial court denied that motion, reminding appellant that he had been given some relief by the court’s limiting of the number of witnesses.
Appellant also moved to renew his oral motion regarding the introduction of certain checks that went to the issue of credibility of a witness. He made the arguments he had made before trial regarding Rules 404, 609, 607 and 608. The trial court denied this motion. Finally, appellant moved for a directed verdict arguing that the State presented insufficient evidence to prove sexual contact or forcible compulsion. The trial court denied his motion. 17Appellant renewed his motion for directed verdict at the close of the defense’s case, along with the other motions listed above, and they were again denied. The jury returned verdicts of guilty on both counts of second-degree sexual abuse, and appellant was sentenced to two concurrent five-year terms of imprisonment. A timely notice of appeal was filed, and this appeal followed.
Sufficiency of the Evidence
This court treats a motion for directed verdict on appeal as a challenge to the sufficiency of the evidence. Ward v. State, 370 Ark. 398, 260 S.W.3d 292 (2007). We will affirm the circuit judge’s denial of a motion for a directed verdict if there is substantial evidence, either direct or circumstantial, to support the jury’s verdict. Id. Substantial evidence is defined as “evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture.” Young v. State, 370 Ark. 147, 151, 257 S.W.3d 870, 875 (2007). Furthermore, “[t]his court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered.” Id. In determining whether there was substantial evidence to support the verdict, this court looks at all of the evidence presented, including any evidence that is alleged to have been admitted in error. See, e.g., Goodwin v. State, 373 Ark. 53, 281 S.W.3d 258 (2008). In addition, the credibility of witnesses 18is an issue for the jury and not the court. See Cluck v. State, 365 Ark. 166, 226 S.W.3d 780 (2006). The factfinder is free to believe all or part of a witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id.
Appellant argues that his motion for directed verdict should have been granted because the State failed to prove any evidence of forcible compulsion. Arkansas Code Annotated section 5-14-125(a)(l) provides that a person commits sexual assault in the second degree if the person engages in sexual contact with another person by forcible compulsion. “Forcible compulsion” is defined as “physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person.” Ark.Code Ann. § 5-14-101(2) (Supp.2009).
Appellant contends that in a case in which there is no express or implied threat of death, physical injury, or kidnapping, in order to convict someone of second-degree sexual abuse, the State must prove there was “physical force” in order to prove forcible compulsion. Further, since the statute already requires touching within the element of sexual contact, “physical force” must be something more than mere touching. He cites Davis v. State, 362 Ark. 34, 207 S.W.3d 474 (2005), where the Arkansas Supreme Court held that forcible compulsion was evidenced by actions including shoving a victim against a wall, locking her in a room, pushing her against a table, and touching her buttocks and breasts. Forcible compulsion was also found in Rounsaville v. State, 2009 Ark. 479, 346 S.W.3d 289, where the defendant used physical force against the victim when she refused to have sex with him.
Finally, appellant cites Nelson v. State, 262 Ark. 391, 557 S.W.2d 191 (1977), which |9was decided when physical force was still a necessary element of the rape of a child. In Nelson, the court found no evidence of forcible compulsion, even though there was clear evidence of sexual advances to which the child had previously submitted, where a child let her stepfather into her room after he banged on the door for fear he would have a heart attack if he were not allowed in. Id. Appellant herein argues that if merely touching a person sexually were enough to be forcible compulsion, there would have been sufficient evidence in Nelson of forcible compulsion, since there was testimony of previous sexual contact.
Appellant contends that there was no testimony from either Ms. Adams or Ms. Davis that he threatened them, either expressly or impliedly, with death or physical injury, and he did not threaten to kidnap them or anyone else. Therefore, he contends that the State was required to show physical force in order to prove second-degree sexual abuse. He argues that Ms. Adams’s testimony presented absolutely no evidence of physical force or any sort of threat. He asserts that she may have been uncomfortable or shocked, but until and unless he tried to compel her to do something, he did not use forcible compulsion on her. He asserts that he did not prevent her from leaving, refuse to open the door, or continue to touch her.
Similarly, he argues that he used no physical force on Ms. Davis. Her testimony was that he said “wait” when she started to pull up her pants. She stopped and let him proceed with the examination. She did not ask him to stop or tell him that she was uncomfortable with what he was doing. He argues that this was a consensual exam, regardless of whether it was unorthodox. He contends that the only physical impact was the touching that was used |inby the State to show sexual contact. Because sexual contact and physical force are separate elements, he argues that touching alone cannot constitute the physical-force element of the statute.
The supreme court has defined “physical force” as “any bodily impact, restraint or confinement, or the threat thereof.” Freeman v. State, 331 Ark. 130, 132, 959 S.W.2d 400, 401 (1998). The test used to determine whether there was physical force is “whether the act was against the will of the party upon whom the act was committed.” Id. at 133, 959 S.W.2d at 401. The quantum of force need not be considered as long as the act is committed against the victim’s will. E.g., West v. State, 27 Ark. App. 49, 766 S.W.2d 22 (1989). Appellant argues that forcible compulsion must be more than touching, as touching is part of the definition of sexual contact and as the same touching could not satisfy both elements of the crime. However, that argument need not be reached because in each victim’s sexual assault, there was forcible compulsion in the form of physical force or the threat of physical injury separate from the touching required for sexual contact.
First, Ms. Adams testified that appellant had been her family doctor prior to her assault on February 13, 2008. He had never acted inappropriately until that date. While she consented to being touched for the purpose of a medical exam, that did not include consent for him to touch her vagina, clitoris, or pubic area, or to disrobe her beyond what was necessary for a legitimate medical exam. He tried to unbutton her jeans and pull up her shirt, all acts of physical force that were unnecessary for the exam. Appellant commented on her | n shaved pubic area and said he “should just bend her over the table,” a statement both Ms. Adams and the jury easily could interpret as a threat of forcible sexual intercourse. This proof meets the definition of forcible compulsion required by the statute and is sufficient.
Ms. Davis’s testimony was that she had had several doctors check her joints, but none had ever pulled her pants down to perform the examination. She did not believe a lower-back examination required appellant to put his hands on her vagina, and she stated that none of the other doctors who had examined her ever touched her vagina. Dr. Ross agreed that appellant’s actions were inappropriate and unnecessary for a legitimate medical exam. The element of forcible compulsion was proven in regard to Ms. Davis’s claim, as appellant used physical force to undress her beyond the point necessary for a legitimate medical exam and then, by refusing to allow her to re-dress by telling her to wait when she tried to do so.
Appellant argues that these women consented to his actions. The State claims that the women's trust in appellant and their shock at being treated this way by a medical doctor caused them to protest his actions neither as quickly nor as strongly as they would have had he not been in that position of trust and authority. Nevertheless, they did not consent, and his actions were committed against their will. Thus, there was sufficient evidence before the trial court that appellant used forcible compulsion to perpetrate his crimes, and we affirm.
112Severance
Appellant contends that the trial court erred in failing to sever the charges against him pursuant to Rules 21.1 and 22.2 of the Arkansas Rules of Criminal Procedure. Rule 21.1 provides:
Two (2) or more offenses may be joined in one (1) information or indictment with each offense stated in a separate count, when the offenses, whether felonies or misdemeanors or both:
(a) are of the same or similar character, even if not part of a single scheme or plan; or
(b) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.
Ark. R.Crim. P. 21.1 (2009). Rule 22.2 states:
(a) Whenever two (2) or more offenses have been joined for trial solely on the ground that they are of the same or similar character and they are not part of a single scheme or plan, the defendant shall have a right to a severance of the offenses.
(b) The court, on application of the prosecuting attorney, or on application of the defendant other than under subsection (a), shall grant a severance of offenses:
(i) if before trial, it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense; or
(ii) if during trial, upon consent of the defendant, it is deemed necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense.
Ark. R.Crim. P. 22.2 (2009). The decision to sever offenses is discretionary with the trial court. Kemp v. State, 348 Ark. 750, 74 S.W.3d 224 (2002). Moreover, we will affirm a trial court’s denial of a motion to sever if the offenses at issue were part of a single scheme or plan or if the same body of evidence would be offered to prove each offense. Id.
Appellant contends that under Rule 22.2, he was entitled to severance of the two charges of second-degree sexual abuse and separate trials on each. He also claims that under 11sRule 21.1, the State may, but is not required to, join several offenses under one information or indictment, but if those offenses are not part of a single scheme or plan, the defendant, under 22.2, has the right to a severance. Rule 22.2 is not permissive, but gives an absolute right of severance when the offenses are joined solely on the ground that they are of the same or similar character. Ruiz v. State, 273 Ark. 94, 617 S.W.2d 6 (1981).
Appellant claims Clay v. State, 318 Ark. 550, 886 S.W.2d 608 (1994), is directly on point, wherein the Arkansas Supreme Court held that the trial court abused its discretion in denying a motion to sever sex offenses against different child victims when the offenses were of a similar char acter but were not part of a single scheme or plan. He also cites Campbell v. State, 2009 Ark. 540, 354 S.W.3d 41, where the Arkansas Supreme Court quoted Clay in saying joinder of charges that are not part of a single scheme or plan poses a grave risk of prejudice.
Appellant contends that the State had no basis on which to assert that the charges were part of a single scheme or plan. He claims that the State offered no argument, testimony, or proof that he planned the offenses in advance as part of a single scheme, nor was there any allegation or proof that the crimes were part of one criminal episode. See Clay, supra. He argues that, in this case, these two women were seen in separate appointments on separate days, thus these were clearly not a continuing episode.
The State argued at the hearing held on March 4, 2009, that the charges against appellant were appropriately joined under either Rule 21.1(a) or (b). The trial judge agreed 114and refused to grant the motion to sever. This ruling was correct, in that appellant committed virtually the same behavior with Ms. Adams and Ms. Davis on consecutive days in his office exam room without a nurse present, without giving either of them a gown or sheet to cover themselves, and while making sexual comments to each.
The instant case can be distinguished from Clay, in that the offenses there occurred over a twelve-month period, involved different charges with different culpable mental states, and were committed in different manners, against different victims, and at different locations. Here, the two charges were for the same crime, the assaults occurred within a one-day period, at the same location, in the same manner, and the victims’ narrative of events were virtually identical. Therefore, no abuse of discretion was committed by the trial court when it denied severance.
Rule WMb) Issues
Under Arkansas Rule of Evidence 404(b), any evidence of a person’s other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. See Ark. R. Evid. 404(b). However, the evidence may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. See id.
The admission or rejection of evidence under Rule 404(b) is committed to the sound discretion of the circuit court, and we will not reverse absent a showing of manifest abuse of that discretion. See Lamb v. State, 372 Ark. 277, 275 S.W.3d 144 (2008). Evidence offered launder Rule 404(b) must be independently relevant to make the existence of any fact of consequence more or less probable than it would be without the evidence. Phavixay v. State, 373 Ark. 168, 282 S.W.3d 795 (2008). In other words, the prior bad act must be independently relevant to the main issue, in that it tends to prove some material point rather than merely proving that the defendant is a criminal. See id. Any circumstance that ties a defendant to the crime or raises a possible motive for the crime is independently relevant and admissible as evidence. Jackson v. State, 359 Ark. 297, 197 S.W.3d 468 (2004).
Appellant contends that the trial court abused its discretion on two evidentiary matters when it allowed the State to present 404(b) witnesses and refused to allow the defense to impeach one of the alleged victims with her prior bad acts. First, appellant cites Donaldson v. State, 2009 Ark. App. 119, 302 S.W.3d 622, where this court reversed the defendant’s conviction and remanded for a new trial where Rule 404(b) evidence was allowed by the trial court. In Donaldson, the defendant was accused of sexual assault in the second degree against three young women. Id. The charges were severed, but the trial court allowed evidence of the second and third charges in as Rule 404(b) evidence, ruling that the similarity of the victims’ ages, the fact that they were each employed at the movie theater where the defendant was a guard, and the pattern of abuse were all relevant to the intent of the charged offense. Id. The State argued that the circuit court was free to determine that (1) the defendant intended to establish a rapport of ease with each of the alleged victims, and (2) he then used the relationships with the girls to touch them inappropriately. Id. The defendant’s defense 116to the charge was that what happened between the third victim and him was consensual. Id. The State argued that, as such, evidence that he previously had treated two other young female coworkers similarly was independently relevant to establish that appellant sexually assaulted the third victim in the case, thus the evidence was properly admitted. Id. However, this court held that there was no issue of intent with respect to the offense charged in the case. Id. This court could not perceive of any independent relevance that the testimony of the alleged victims in the other two severed charges would have in the case involving the third victim. Id. We stated, “This is precisely the type of evidence that Rule 404(b) was designed to exclude.” Id. at 9, 302 S.W.3d at 628.
Appellant contends that, as was pointed out by the Arkansas Supreme Court in Clay, if the State is allowed to pile up multiple charges in one case against a defendant, the jury is more likely to convict, as opposed to listening to the evidence on one charge only and finding it wholly insufficient. Clay, supra. Appellant argues that the danger is increased that a jury might wrongfully convict when multiple uncharged offenses are brought into evidence. Here, in addition to the testimony from Ms. Adams and Ms. Davis, nine other women testified. Appellant claims that the evidence from these nine women was offered by the State in an attempt to show that he had sexually abused patients before and therefore was likely to have done it to Ms. Adams and Ms. Davis. He urges that none of the nine witnesses’ testimony showed his intent, plan, or motive to abuse Ms. Adams and Ms. Davis. He argues that the acts described by the nine witnesses were all dissimilar. Further, he claims that Dr. [ ^Ross’s testimony addressed the complaints of the nine witnesses, which would only confuse the jury. Appellant maintains that Rule 404(b) specifically protects a defendant from “propensity” evidence. However, he asserts that similarity in an act is not an exception to Rule 404(b), but is excluded by it.
We hold that the trial court did not abuse its discretion in allowing the nine witnesses to testify. Donaldson, supra, is distinguishable from the instant case. There, the only similarities between the incidents allowed into evidence under Rule 404(b) and the incident charged was that they involved young women that the defendant met while working at a movie theater; however, the alleged assaults occurred at different times and places and involved different forms of behavior. All the examinations testified to herein took place in appellant’s office exam room without a nurse present, and with only one exception, without a gown or sheet for cover when they were undressed. None of the women knew each other prior to making their complaints, and none had seen any of the others’ written statements before making their own. The evidence pre sented by these witnesses was admissible under Rule 404(b), as it provided additional proof of motive, opportunity, intent, plan, knowledge, and absence of mistake or accident. It was independently relevant to rebut appellant’s argument that no inappropriate or criminal conduct occurred during the exams and that the victims fabricated their stories because they needed money and wanted to sue him to get money damages. See Davis, supra. Further, as pointed out by the State, the jury was properly instructed on Rule 404(b) evidence; thus, no error in the admission occurred. Finally, the |,«trial court properly exercised its discretion under Rule 404(b) in limiting the number of Rule 404(b) witnesses the State could produce.
Second, appellant urges that the trial court abused its discretion when it refused to allow him to present evidence of Ms. Davis’s hot checks under Rules 404(b), 607, 608, and 609 to impeach her credibility and show her untruthfulness. The Arkansas Rules of Evidence allow for a witness’s credibility to be attacked under Rule 607, for evidence to be admitted to show a witness’s untruthfulness under Rule 608, and for a witness’s credibility to be impeached by proof of prior convictions for crimes of untruthfulness under Rule 609. Before trial, the State moved to exclude any evidence regarding the hot-check charges to which Ms. Davis had pled guilty the week before. Appellant insinuated that the prosecutor’s office had motive to reduce Ms. Davis’s charges to misdemeanors and withhold presenting the agreed order to the court to avoid tainting Ms. Davis’s testimony in this case. The trial court disallowed the hot-check evidence because no conviction had been entered.
Appellant submits that Rule 609 does refer to convictions and that the trial court correctly held that there was not yet a conviction because the order had not been entered. However, he argues that the agreement had been reached, and Ms. Davis had technically pled guilty to these crimes of untruthfulness. He submits that to allow the State to skirt Rule 609 when the State alone had the power to hold up drafting the order was unfair and prejudicial.
He further argued to the trial court that the evidence was admissible under Rules 404(b), 607, and 608 because it showed her financial motive to lie about appellant. Appellant | ^proffered the evidence, and he now argues that had he been able to present his evidence to the jury, Ms. Davis’s credibility may have been impeached. He points out that the State made no arguments against this evidence other than the fact that it was not yet a conviction. He further points out that the trial court gave no rationale for denying his request, other than to say it was not allowed under Rule 609.
The State points out that Rule 607 allows an attack on the credibility of a witness. Rule 609 provides that any party may attack the credibility with proof of a felony conviction or any conviction if the crime involved dishonesty or false statement. Here, though Ms. Davis was the subject of felony hot-check charges that were pending at the time of trial, she had not been convicted, and thus, there was no evidence that could be admitted under Rule 609. The State argues that a statement of intent to enter a plea is meaningless in light of Arkansas Rule of Criminal Procedure 26.1(a) (2009), which gives every defendant the right to withdraw a guilty or nolo contendere plea before it has been accepted by the trial court. We agree, therefore, that because there was no conviction, the evidence was not admissible under Rule 609.
As to Rule 608, the State contends that a hot-check charge or conviction did not reflect on appellant’s character for truthfulness or untruthfulness, and therefore was not admissible. See Sitz v. State, 23 Ark. App. 126, 743 S.W.2d 18 (1988) (though embezzlement or other forms of theft are crimes probative of dishonesty, they are not crimes probative of untruthfulness). Arguing alternatively, the State claims that the hot-check charges did not Rpreflect on Ms. Davis’s character for untruthfulness as there could be other explanations for the returned checks, such as a co-account holder who closed the account without telling her. Without a conviction, the evidence is merely speculative. We find no abuse of discretion in disallowing the evidence under Rule 608.
Finally, appellant’s argument that the evidence should have been allowed under Rule 404(b) to show Ms. Davis’s motive for filing criminal charges against him is speculative in view of the small amounts of the checks and the fact that the hot-check charges had been pending against her for nearly two years before she was assaulted by appellant and for nearly three years by the time of his trial. Further, appellant was allowed to introduce a copy of the civil complaint Ms. Davis had filed against him, and he could have easily argued from that that greed was her motive. Therefore, we hold that there was no prejudice in disallowing the evidence of the hot-check charges.
Affirmed.
HENRY and BROWN, JJ., agree.
. This motion to exclude two 404(b) witnesses that had been disclosed to the defense the week before trial is not at issue in this appeal, as the defendant declined the trial court’s offer of continuance.
. In his brief, appellant states, "In the instant case, the State purported to prove, and apparently the jury believed, Dr. Arendall engaged in sexual contact with Ms. Adams and Ms. Davis. While sexual gratification is a third element of the crime that is found in the definition of sexual contact, sexual gratification, while not conceded by Dr. Arendall, is assumed for purposes of this "sufficiency of the evidence” review, since the jury necessarily had to find sexual contact in order to convict Dr. Arendall.” The State interprets this as appellant challenging only the sufficiency of the State's proof of the element of forcible compulsion as to each charge. Thus, he does not challenge the jury's conclusions that he committed acts of sexual contact, i.e., acts of sexual gratification against the two victims involving "touching, directly or through clothing,” the victim’s sex organs, buttocks, anus, or breast. Ark.Code Ann. §§ 5-14-101(10) and 125(a)(1) (Supp.2009). We agree with the State’s interpretation. | [
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WAYMOND M. BROWN, Judge.
| j Based upon a finding that Sandra Hob-son was not the real party in interest, the Prairie County Circuit Court granted Donald Holloway’s motion for summary judgment, resulting in the dismissal of Hob-son’s negligence claim against him. The circuit court so ruled because Hobson filed her complaint while her Chapter 7 bankruptcy estate was still open. We hold (1) that the bankruptcy trustee had not abandoned Hobson’s claim at the time she filed her complaint, (2) that the entire claim was still part of the estate at the time the bankruptcy estate was filed, and (3) that any misinterpretation of an order from a different judge was irrelevant because Hobson could do nothing to revive her null complaint. Thus, the circuit court was correct in granting the motion for summary judgment, and we affirm.
| gHolloway allegedly rear-ended Hob-son’s car while the two were driving on Highway 70 in Biscoe on September 28, 2004. She filed for Chapter 7 bankruptcy in May 2006. She listed the claim against Holloway as an asset, valued it at $13,085.20, and claimed that it was exempted property under the bankruptcy code. The bankruptcy court granted Hob-son a discharge in August 2006. After the bankruptcy estate was closed, the bankruptcy trustee received a letter indicating that Hobson’s negligence claim may have been worth more than originally anticipated. At the trustee’s request, the bankruptcy court reopened the estate in June 2007 to allow the trustee to consider taking action in the negligence claim. By order entered September 12, 2007, the bankruptcy court observed that no party had filed any pleadings since it reopened the bankruptcy estate, and it warned that it would re-close the estate absent a showing of cause for keeping it open. The court re-closed the estate on September 26, 2007.
Hobson filed a complaint in circuit court on September 25, 2007 — one day before the bankruptcy court re-closed the case and three days before the expiration of the statute of limitations. Holloway eventually responded by filing a summary-judgment motion. He argued that Hobson lacked standing to file her complaint, as the bankruptcy trustee was the real party in interest. In August 2008, the court (by Judge Bill Mills) gave the bankruptcy trustee two months to either claim an interest in the lawsuit or ratify Hobson’s actions. The trustee took no action related to this lawsuit within the time period. After Holloway brought the trustee’s lack of action to the attention of the circuit court, it (by Judge Thomas Hughes) held a | shearing on the motion for summary judgment. The circuit court granted Holloway’s motion, and this appeal followed.
The only issue before us is whether the circuit court erred in granting Holloway’s motion for summary judgment. Hobson’s contentions are (1) that her claim was abandoned by the bankruptcy trustee, (2) that her claim was exempted property, (8) that her claim for lost wages did not constitute estate property, and (4) that Judge Hughes misinterpreted Judge Mills’s August 2008 order. In reviewing the grant of summary judgment, we would normally view the evidence in the light most favorable to Hobson (the party resisting the motion) and resolve any doubts and inferences against Holloway (the moving party). But because the parties do not dispute the relevant facts, we simply determine whether Holloway was entitled to judgment as a matter of law. Further, the question of Hobson’s standing to bring suit is a matter of law for this court to decide de novo.
Legal claims that accrue before the filing of a bankruptcy petition are property of the bankruptcy estate. A debtor lacks standing to prosecute a claim in his or her own name absent abandonment by the bankruptcy trustee. A complaint filed by a party who lacks |4standing is a nullity and has no legal effect. Such a complaint does not interrupt the statute of limitations, and motions to substitute the real party in interest are treated as the filing of a new suit. Thus, unless Hobson’s claim was abandoned by the bankruptcy trustee, she had no standing to file her complaint against Holloway. Her complaint would have no legal effect and, because the statute of limitations has elapsed, she would be barred from pursuing her claim.
Hobson argues that her claim was indeed abandoned at the time she filed her complaint. Unless the court orders otherwise, a scheduled asset is considered abandoned to the debtor if it is not administered in the bankruptcy. Hobson’s claim was a scheduled asset, but she filed her complaint one day before the bankruptcy estate was closed. Though the claim may have been abandoned when the bankruptcy court closed the estate the first time, the claim lost its “abandoned” status when the bankruptcy court reopened the estate for the purpose of allowing the trustee to consider pursuing the claim. There is support for the position that a lack of standing may be cured by the later abandonment of a claim where the |fidebtor has made an “understandable mistake” by suing in his or her own name. But our supreme court has held that it is not an understandable mistake to sue in the name of the wrong person where a statute makes it clear who may bring suit. We believe that this holds equally true when our case law clearly identifies the real party in interest in a lawsuit. Therefore, we hold that Hobson’s claim was not abandoned at the time she filed her complaint.
Alternatively, Hobson asserts that her negligence claim against Holloway was not part of the bankruptcy estate. Under two separate headings, she contends (1) that the claim was exempt from the bankruptcy estate and (2) that part of her claim was for lost future earnings, which she contends are not part of the estate under bankruptcy law.
The commencement of a bankruptcy case creates a bankruptcy estate, and the debtor relinquishes all control of his or her estate upon filing the petition. The bankruptcy code allows the debtor to claim certain property as exempt from distribution. Relevant exemptions here include up to $20,200 for a payment on account of personal bodily injury and loss of future earnings to the extent reasonably necessary for the support of the debtor and |6any dependent of the debtor. Unless a party in interest objects, the property claimed is considered exempt. Here, Hobson valued her claim against Holloway at $13,085.20 and listed the entire claim as exempted property, and the record does not show that anyone objected.
Hobson argues that, because no one objected to the exemption, her claim against Holloway is exempted property, making her the real party in interest in the lawsuit. In so. arguing, she relies on the Supreme Court’s opinion in Taylor v. Free-land & Kronz. There, a bankruptcy debtor claimed the proceeds from an employment-discrimination claim as exempted property. At a meeting of the creditors, the trustee learned that the debtor’s claim might be worth $90,000. Thinking that the claim was likely a nullity, the trustee did not object to the exemption. The debtor later settled the claim for $110,000, and the trustee considered the proceeds to be part .of the bankruptcy estate. The Supreme Court disagreed, holding that, absent an objection within thirty days of the creditors’ meeting, the property claimed as exempt belongs to the debtor and not the estate, even if the exemption was improper. Relying on this holding, Hobson argues that her claim against Holloway is exempt, as the trustee did not object to her listing it as exempted property. Thus, she believes that the claim could be prosecuted in her name.
|7In response to this argument, Holloway relies on In re Wick, where the Eighth Circuit distinguished Taylor and reached a different result. There, the debtor claimed an exemption on a contract claim, but listed both the value of the claim and the value of the exemption as “unknown.” The debtor eventually received $97,200, and the trustee demanded a portion of the proceeds. Relying on Taylor, the debtor believed that she was entitled to the entire amount. The Eighth Circuit disagreed, holding that Taylor was inapplicable because the asset in question was only partially exempted and because the debtor claimed only a partial exemption. Holloway contends that, because Hobson’s claim appeared to be worth more than she stated when she declared the exemption, the trustee had the authority to object to the exemption and claim the proceeds.
We agree with Holloway. When Hob-son valued her claim at less than the amount allowed to be exempted under the statute, the trustee had no reason to object to the exemption. This is in contrast with the trustee in Taylor, who had a legitimate reason to challenge the exemption but did not do so. The trustee here did not have a legitimate reason to object to the exemption until he learned that Hobson’s claim might have been worth more than the bankruptcy code allowed to be exempted. And he petitioned for the estate to be reopened to specifically address the claim. Because the trustee could still pursue a claim for the proceeds, Hobson’s claim was not removed from the bankruptcy estate at the time she filed her complaint.
| sUnder a separate point, Hobson contends that part of her claim against Holloway was not part of the bankruptcy estate. Specifically, she notes that she sought damages for lost future earnings, and she asserts that future earnings are not part of the bankruptcy estate. We disagree. Bankruptcy estate property is broadly defined to encompass conditional, future, speculative, and equitable interests, and includes all causes of action the debtor could have brought at the time of the bankruptcy petition. Further, as previously mentioned, the bankruptcy code allows a limited exemption for loss of future earnings. Between this broad definition and the related partial exemption, we do not hesitate to hold that the bankruptcy estate includes Hobson’s claim for lost future earnings.
Finally, Hobson argues that Judge Hughes misinterpreted the circuit court’s August 27, 2008 order allowing the bankruptcy trustee to assert an interest in the case. She believes that the circuit court did not intend to rule on that day that she was not the real party in interest and that the court was simply giving the trustee an opportunity to either assert or abandon an interest. Even if we were inclined to agree with Hobson, the trustee could not breathe life into the void complaint by either asserting an interest or ratifying her complaint after the fact.
l3The circuit court correctly ruled that Holloway was entitled to judgment as a matter of law, as Hobson was not the real party in interest when she filed her complaint. The complaint was a nullity, and because the statute of limitations has elapsed, she is barred from pursuing her claim. Accordingly, we affirm.
Affirmed.
HART and GLADWIN, JJ., agree.
. See Luu v. Still, 102 Ark.App. 11, 279 S.W.3d 481 (2008).
. Id.
. Pulaski County v. Ark. Democrat-Gazette, Inc., 371 Ark. 217, 264 S.W.3d 465 (2007).
. Fields v. Byrd, 96 Ark.App. 174, 239 S.W.3d 543 (2006).
. Bratton v. Mitchell, Williams, Selig, Jackson & Tucker, 302 Ark. 308, 788 S.W.2d 955 (1990) (citing Vreugdenhil v. Hoekstra, 773 F.2d 213 (8th Cir.1985)).
. Bibbs v. Community Bank of Benton, 375 Ark. 150, 289 S.W.3d 393 (2008).
. St. Paul Mercury Ins. Co. v. Circuit Court of Craighead County, 348 Ark. 197, 73 S.W.3d 584 (2002).
. 11 U.S.C. § 554(c) (2006).
. See Figlio v. Am. Mgmt. Servs., Inc. (In re Figlio), 193 B.R. 420, 424 (Bankr.D.N.J.1996) (finding that the term "closed” means "finally closed”); see also Compass Bank for Savings v. Billingham (In re Graves), 212 B.R. 692 (1st Cir. BAP 1997) (discussing three approaches, but adopting the one in Figilo).
. See PM Factors, Inc. v. Kreisel (In re Kreisel), 399 B.R. 679 (Bankr.C.D.Cal.2008).
. Rhuland v. Fahr, 356 Ark. 382, 155 S.W.3d 2 (2004).
. 11 U.S.C. § 541(a) (2006); In re Dervaes, 81 B.R. 127 (Bankr.S.D.Fla.1987).
. See generally 11 U.S.C. § 522 (2006).
. 11 U.S.C. § 522(b)(2), (d)(11)(D).
. 11 U.S.C. § 522(b)(2), (d)(l 1)(E).
. 11 U.S.C. § 522(7).
. 503 U.S. 638, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992).
. 276 F.3d 412 (8th Cir.2002).
. U.S. v. Transp. Admin. Servs., 260 F.3d 909 (8th Cir.2001); Bibbs v. Community Bank of Benton, 101 Ark.App. 462, 278 S.W.3d 564, aff'd, 375 Ark. 150, 289 S.W.3d 393 (2008).
. See note 13 and accompanying text.
. See Bibbs v. Community Bank of Benton, 375 Ark. 150, 289 S.W.3d 393 (2008). | [
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DAVID M. GLOVER, Judge.
|,The Benton County Circuit Court terminated the parental rights of appellants Merilee Henderson and Jeremiah Devon in their son, S.D. (born December 28, 2006). Henderson seeks reversal, arguing that termination was not in S.D.’s best interest and that no grounds for termination existed. Devon’s counsel has filed a no-merit brief and motion to withdraw pursuant to Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), and Ark. Sup.Ct. R. 6-9(i). Counsel lists the termination decision as the only adverse ruling below and states that there are no issues of arguable merit for appeal. Our clerk’s office mailed a copy of the brief and motion to Devon’s last known address, informing him of his right to submit points for reversal. Devon has filed no pro se points. For | ¡>the reasons explained below, we affirm the termination order as to both appellants and grant Devon’s counsel’s motion to withdraw.
The case began when the Arkansas Department of Human Services (“DHS”) sought emergency custody of S.D., based on the following events described in DHS’s affidavit. On March 27, 2008, a sheriffs deputy investigated a domestic disturbance at appellants’ home and found appellants “wrestling around” when he arrived. Appellant Henderson appeared to be under the influence of drugs, had a fresh blood blister on her arm consistent with drug use, and said she had injected Oxycontin the previous night. Henderson also admitted to a prior methamphetamine addiction, and Devon reported having a serious drinking problem. Authorities arrested appellants for domestic assault and charged Henderson with obstructing governmental operations. EMS personnel took S.D., who had been sick for several days, to the hospital, where medical personnel diagnosed him with inner-ear and upper-respiratory infections.
On March 31, 2008, the trial court granted emergency custody of S.D. to DHS. After finding probable cause for S.D.’s removal from the home, the court adjudicated the child dependent-neglected, noting appellants’ stipulations that they suffered from drug or alcohol addictions and that they lacked stable and appropriate housing and employment. The court set a goal of reunification and adopted DHS’s recommendations for appellants, including counseling, parenting classes, visitation with S.D., random drug testing, AA/NA meetings,_J^appropriate housing and employment, and, in Henderson’s case, a drug- and-alcohol assessment. The court later added requirements that appellants obtain psychological evaluations and complete inpatient drug treatment.
Through two ensuing review periods, the court continued the goal of reunification, despite appellants testing positive for drugs, being inconsistent in visiting S.D., missing counseling appointments, and not documenting their attendance at AA/NA meetings or parenting classes. On February 10, 2009, the court held a permanency-planning hearing that changed the goal of the case to termination of parental rights. The court found that appellants had been dismissed from intensive family services for missing half of their appointments; that Henderson was incarcerated and had not completed a psychological evaluation or in-patient drug treatment; that Devon had not proved attendance at AA/NA meetings or parenting classes as ordered; and that Devon had missed or was late to his visits with S.D. The court held a termination hearing on May 29, 2009.
Devon’s no-merit appeal
At the termination hearing, Devon testified that he lived with his mother and stepfather and that he had been employed for one month. He said that he had been cited the previous week for owing several thousand dollars in child support and that he was arrested in February 2009 for leaving the scene of an accident. Devon said that he stopped attending sessions with one counselor because he did not like the counselor’s “actions” and that he |4missed nine or ten visits in a row with another counselor due to medical problems or being too depressed to get out of bed. Devon acknowledged that he had not undergone sufficient counseling to address his issues. He additionally admitted to giving false answers on his psychological evaluation, stating that he lost interest and wanted to “go home and lay down.” Devon further testified that he had not completed parenting classes and that he had lost interest in visiting S.D., having attended only three of the last fourteen scheduled visits.
Dr. Martin Faitak, who conducted Devon’s psychological evaluation, testified that Devon’s test scores were above average for anxiety, depression, psychotic experiences, suicidal ideation, aggressive attitude, thought disorder, and egocentricity. Dr. Faitak said that Devon reported previous arrests for alcohol-related and domestic-violence offenses and that Devon stated that he was violent only when he was inebriated.
Family service worker Stephanie Cochran testified that a home study on Devon’s mother’s residence was not approved. She also said that Devon had missed numerous visits with S.D., missed several counseling sessions, and had not actually worked as a ranch hand in recent months, as he claimed. Paige Stephens of the Ozark Guidance Center testified that Devon had not seen a therapist since February 10, 2009, and that he had missed or canceled several appointments since that date. Documentary evidence reflected that Devon tested positive for marijuana on July 25, 2008, and on August 1, 2008, during a visit with S.D. DHS also produced evidence that S.D.’s foster parent wanted to adopt him.
| ¿After a careful review of the record, counsel’s brief, and the above evidence, we find that counsel has complied with the Arkansas Supreme Court’s requirements for no-merit appeals in termination cases, and we conclude that Devon’s appeal is wholly without merit. See Staley v. Ark. Dep’t of Human Sens., 2009 Ark. App. 694, 2009 WL 4654776. We therefore affirm the termination order as to Devon and grant counsel’s motion to withdraw.
Henderson’s merit appeal
Henderson testified at the termination hearing that she was arrested for possession of a controlled substance and possession of drug paraphernalia approximately sixty days after S.D. was taken into custody by DHS. As a result, she was incarcerated in a residential treatment facility beginning in November 2008. Henderson stated that she received a two-year sentence but that, if she completed her long-term drug-treatment program, she could be released in August 2009. She testified further that she was currently working on the fourth step of an AA program and that she had been appointed to a position of responsibility at the treatment facility four weeks earlier. She provided documentation that, in the few months prior to the termination hearing, she completed parenting classes, money-management training, and various workforce-preparation seminars. According to Henderson, she had housing and a job available upon her release, although she would “have to go apply” for the job. She acknowledged that neither she nor Devon had been employed when S.D. was taken into DHS custody. Henderson also stated that she wanted to attend community college and |ñthat she had completed her financial aid application. Henderson testified further that she had married Devon the previous November and that she corresponded with him frequently; however, she said that she intended to keep Devon away from her if he was not drug free and stated that she would require him to have a steady job, to help around the house, and to attend AA/NA meetings and church.
Henderson acknowledged having previous drug problems and said that she attended in-patient treatment in October 2008 for two weeks, just prior to her incarceration. She testified that she missed some counseling appointments prior to her incarceration but said that her counselor told her that she did not need counseling any longer. Henderson also said that she did not undergo a psychological evaluation because her caseworker did not set up the appointment. She stated that she did not recall receiving a telephone call from Dr. Faitak’s office on October 13, 2008.
Foster parent Delia Ingle said that S.D. had been in her care for one year. She said that the child was very sick when he first came to her, that he had trouble sleeping through the night without screaming, and that he did not like to be held. Ingle stated that those problems had been rectified and that she and her husband wanted to adopt S.D.
Family service worker Stephanie Cochran testified that S.D. could not safely be returned to Henderson in August 2009, even if Henderson were released at that time. Cochran said that Henderson would have to demonstrate that she could stay clean, maintain |7stable housing and employment, attend visitations, and perform parenting skills. Cochran also testified that DHS had provided numerous services to Henderson and Devon, including visitation, counseling referrals, drug-and-alcohol assessments, transportation assistance, and referrals for housing and employment. Cochran stated further that S.D. had been in a foster home since May 2008 and that he was “a completely different child” than he had been earlier in the case.
DHS also entered several exhibits into evidence without objection by Henderson. Drug-testing affidavits showed that, in mid-2008 after S.D. was placed in DHS custody, Henderson tested positive for marijuana and cocaine while taking prescriptions for Xanax and hydrocodone. A DHS court report reflected that Henderson also tested positive for marijuana during an August 1, 2008 visit with S.D. Other reports stated that a counselor discontinued services with Henderson and Devon because they missed half of their scheduled appointments and that both parents missed visits with S.D. in August, September, and October 2008. DHS also entered a judgment and commitment order showing Henderson’s 2004 conviction for delivery of a controlled substance. The order reflected that Henderson was sentenced to two years in a regional punishment facility, that she was scheduled to complete long-term drug treatment while there, that she had a prior record of simi lar offenses, and that she had a persistent problem with probation violations.
Following the hearing, the circuit court terminated Henderson’s and Devon’s parental | «rights in S.D. The court found that termination was in the child’s best interest and that the following grounds were proved by clear and convincing evidence: 1) that the child had been adjudicated dependent-neglected and continued out of the home for twelve months and that, despite a meaningful effort by DHS to rehabilitate the home and correct the conditions that caused removal, those conditions were not remedied; 2) that, subsequent to the filing of the original petition for dependency-neglect, other factors or issues arose that demonstrated that return of the child to the parents’ custody was contrary to the child’s health, safety, or welfare, and that, despite the offer of appropriate family services, the parents had manifested the incapacity or indifference to remedy the subsequent issues or factors, or rehabilitate their circumstances, which prevented return of the child to them. See Ark.Code Ann. § 9-27-341(b)(8)(B)(i)(a) and (vii)(a) (Repl.2009). Henderson appeals from the termination order.
An order forever terminating parental rights must be based on clear and convincing evidence that termination is in the child’s best interest and that at least one statutory ground for termination exists. Ark.Code Ann. § 9-27-341(b)(3)(A) and (B) (Repl.2009). This court will not reverse the circuit court’s findings in a termination case unless they are clearly erroneous. Strickland v. Ark. Dep’t of Human Servs., 103 Ark. App. 193, 287 S.W.3d 633 (2008). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. We review termination orders de novo. Id.
|flHenderson argues first that DHS produced insufficient evidence of potential harm in returning the child to her. Potential harm is a factor that the circuit court must consider in assessing the child’s best interest. See Ark.Code Ann. § 9-27-341(b)(3)(A)(ii). The court is not required to find that actual harm would ensue if the child were returned to the parent, nor to affirmatively identify a potential harm. Dowdy v. Ark. Dep’t of Human Servs., 2009 Ark. App. 180, 314 S.W.3d 722. Rather, the potential-harm analysis is to be conducted in broad terms. Thomsen v. Ark. Dep’t of Human Servs., 2009 Ark. App. 687, 370 S.W.3d 842.
In this case, we cannot say that the circuit court clearly erred in its consideration of the potential-harm factor Or in finding that termination was in S.D.’s best interest. Although Henderson made efforts to rehabilitate herself after her November 2008 incarceration, her eleventh-hour improvements need not be credited by the circuit court and will not be held to outweigh evidence of prior noncompliance. See Krass v. Ark. Dep’t of Human Servs., 2009 Ark. App. 245, 306 S.W.3d 14. By the time Henderson began any semblance of serious effort in this case, S.D. had been in DHS custody for eight months or more. During those eight months, Henderson tested positive for drugs several times and was arrested and convicted on drug-related charges. She also failed to obtain a psychological evaluation as ordered by the court and was inconsistent in visiting S.D. Moreover, her stated desire to |inachieve the goals of employment and education, while admirable, does not warrant reversal. Her abilities in these areas remain untested, as she has yet to demonstrate that she can provide for S.D. in a normal environment outside of prison. Furthermore, Henderson’s drug rehabilitation was still a work in progress at the time of the hearing. This factor is particularly relevant to the potential-harm analysis, given Henderson’s history of serious drug addiction, her usage of drugs during the case, her prior drug charges, and her tendency to violate probation after being convicted on drug charges. Past actions of a parent over a meaningful period of time are good indicators of what the future may hold. Thompson v. Ark. Dep’t of Human Servs., 2010 Ark. App. 167, 374 S.W.3d 143.
Henderson points out that she hoped to be released in August 2009, which would allow her to regain custody of S.D. However, her early release was not a certainty. See Fields v. Ark. Dep’t of Human Servs., 104 Ark. App. 37, 289 S.W.3d 134 (2008). Her sentence runs through November 2010, and by that time, S.D. will have been out of her custody for well over two years. Furthermore, even if Henderson were released early, DHS would require additional time for her to demonstrate the ability to maintain suitable housing and employment and live a law-abiding, drug-free life without the restrictions imposed by incarceration. See id. The prolonged period that would be required for Henderson to prove herself would stretch S.D.’s time without permanency beyond that contemplated by our termination statute. Arkansas Code Annotated section 9-27-341(a)(3) (Repl. 2009), provides |nthat the intent of our termination statute is to provide permanency in a child’s life in all instances in which the return of the child to the family home is contrary to the child’s health, safety, or welfare and it appears from the evidence that a return to the family home cannot be accomplished in a reasonable period of time as viewed from the child’s perspective. We have also recognized that a child’s need for permanency and stability may override a parent’s request for additional time to improve her circumstances. Dozier v. Ark. Dep’t of Human Servs., 2010 Ark. App. 17, 372 S.W.3d 849. In these circumstances, including the presence of a readily available adoptive family for this young child, we affirm the court’s ruling that termination was in S.D.’s best interest.
Henderson argues next that DHS failed to prove grounds for termination. The circuit court did not err on this point. Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a) sets out the following statutory ground:
That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that return of the juvenile to the custody of the parent is contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevents return of the juvenile to the custody of the parent.
Subsequent factors bearing on Henderson’s parental fitness arose after the filing of the original dependency-neglect petition in this case. These included Henderson’s drug use during the case; her commission of drug-related crimes after S.D. was taken into DHS custody; her failure to follow court orders during much of the case; and her failure to have | ^appropriate housing or employment more than one year into the case. The circuit court may well have found that, despite DHS’s offer of appropriate ser vices, these factors demonstrated that returning S.D. to Henderson was contrary to the child’s health, safety, or welfare, and that, given Henderson’s drug use and failure or inability to follow court orders, she manifested an incapacity or indifference to remedy those subsequent issues or factors or rehabilitate her circumstances. Accordingly, the elements of the statutory ground for termination contained in Ark.Code Ann. § 9-27-341(b)(3)(B)(vii)(a) were met. The presence of these elements also contradicts Henderson’s claim that the circuit court terminated her parental rights based solely on her incarceration.
We therefore affirm the termination order as to Henderson.
Affirmed; motion of Devon’s counsel to withdraw granted.
ROBBINS and MARSHALL, JJ., agree.
. The court must also consider the likelihood that the child will be adopted. Ark.Code Ann. § 9-27-341(b)(3)(A)(i). Henderson does not challenge the circuit court’s consideration of this factor. | [
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ROBERT J. GLADWIN, Judge.
|!Appellant Randy Paul Brown appeals his November 24, 2008 conviction in the Saline County Circuit Court and the denial of his post-trial motion for relief filed January 21, 2009. He contends on appeal that the trial court erred in permitting thirty-five-year-old, uncharged-misconduct evidence to be admitted during the sentencing phase of the trial, in not granting him a reduction in sentence, and in denying his motion for post-trial relief. We affirm appellant’s conviction, but reverse and remand for resentencing in accordance with this opinion.
Facts
An information was filed on November 2, 2007, charging appellant with five counts of sexual assault in the second degree. These charges were the result of the victim, eight-tyear-old2 B.R., accusing appellant, her sixty-year-old neighbor, of inappropriately touching her. At trial, B.R. testified that she began helping appellant in his garden. After spending more time with him, he started kissing her, placing his hands under her shirt and down her pants. She described that much of this conduct occurred in appellant’s house in front of a partially-hidden mirror in the laundry room. She testified that, at one point, she was lying face down on the floor in appellant’s den while playing with his dog. Appellant climbed on top of her and began moving backward and forward, breathing heavily. She explained that the sexual assaults began when she was seven-years old, but she did not tell her parents until appellant kissed her “pee pee” and her confusion about the situation gave way to the realization that the behavior was wrong. She eventually told her mother, who then told her father.
B.R.’s mother testified that the child begged her parents not to tell anyone because she was embarrassed. B.R.’s father testified that he confronted appellant, who stated, “I have been taking some medi cation that got me acting crazy ... I didn’t know what I was doing ... I’m sixty-years old ... I’m too old to go to jail.” B.R.’s parents subsequently notified police, and charges were brought against appellant.
Prior to trial, appellant filed a motion in limine seeking to exclude Rule 404(b) evidence consisting of the testimony of Lou Ann Turri concerning an alleged sexual assault |son her by appellant occurring thirty-five years prior to trial in the instant case. Ark. R. Evid. 404(b) (2009). The motion was granted excluding the evidence from the guilt-innocence phase of the trial. The State dismissed four of the five pending counts against appellant, and the trial proceeded on one count of sexual assault in the second degree.
Appellant moved for directed verdict at the close of the State’s case and again at the close of all evidence, and the trial court denied those motions. The jury returned a verdict finding appellant guilty of the charge. The State then informed the trial court that it was going to call Lou Ann Turri to testify during the sentencing phase of the trial. Appellant objected, and after hearing a proffer of Ms. Turn’s testimony and arguments of counsel, the trial court overruled the objection.
During the sentencing phase, Ms. Turri testified about the alleged sexual assault perpetrated upon her by appellant. Also, B.R.’s parents testified regarding the effects of the sexual assault on their daughter and family. Finally, appellant’s son testified as to his father’s professional and exemplary service in the military and his lack of any criminal record. The Ljury returned a verdict recommending that appellant receive the maximum sentence of twenty years’ imprisonment in the Arkansas Department of Correction. The trial court accepted the recommendation and sentenced appellant accordingly.
Appellant filed a motion for post-trial relief arguing that his sentence should be reduced pursuant to the trial court’s discretion under Arkansas Code Annotated section 16-90-107(e) (Repl.2006), because the jury’s verdict of the maximum sentence could only have occurred as a result of passion and prejudice brought on by Ms. Turn’s testimony. Further, he argued that pursuant to Arkansas Code Annotated section 16-89-130(e)(7) (Repl. 2006), he should be granted a new trial as to sentencing because he did not receive a fair and impartial sentencing proceeding. He claimed that Ms. Turn’s testimony was not relevant and its probative value was substantially outweighed by the danger of unfair prejudice, as evidenced by appellant’s receiving the maximum sentence from the jury. Finally, he argued that the guilty verdict was contrary to the law and evidence, claiming that the evidence was insufficient to convict him. The trial court denied appellant’s motion, overruling all three arguments. This appeal timely followed.
Sufficiency
Appellant’s claim that the verdict was contrary to the law and evidence is a sufficiency-of-the-evidence claim. See Boren v. State, 297 Ark. 220, 761 S.W.2d 885 (1988). A challenge to the sufficiency of the evidence asserts that the verdict was not supported by substantial evidence, See Sales v. State, 374 Ark. 222, 289 S.W.3d 423 (2008); Flowers v. State, 373 Ark. 127, 282 S.W.3d 767 (2008). Substantial evidence is evidence of sufficient force and character that without resorting to speculation and conjecture compels with reasonable certainty a conclusion one way or the other. Sales, supra. On appeal, this court does not weigh the evidence presented at trial, as that is a matter for the fact-finder, nor do we assess the credibility of the witnesses. See Woods v. State, 363 Ark. 272, 213 S.W.3d 627 (2005). We review the evidence in a light most favorable to the State and consider only the evidence that supports the verdict, and we will affirm where the record reveals that substantial evidence sustains the verdict. See id.
The credibility of witnesses is an issue for the jury and not the court. Phillips v. State, 344 Ark. 453, 40 S.W.3d 778 (2001). The trier of fact is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id. We will disturb the jury’s determination only if the evidence did not meet the required standards, thereby leaving the jury to speculation and conjecture in reaching its verdict. Id. When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there'is substantial evidence to support it. Id.
Appellant contends that the trial court erred in denying his motion for post-trial relief because the verdict was contrary to the law and evidence, citing Arkansas Code Annotated section 16-89-130(c)(5). He submits that the trial court’s denial of a motion for new trial ^should be reviewed pursuant to an abuse-of-discretion standard. Newberry v. State, 262 Ark. 334, 557 S.W.2d 864 (1977). He admits that the victim testified that he had sexual contact with her. However, he claims that the reasons to doubt her testimony stem directly from the influence her parents had over her.
He asserts that the evidence showed that the parents filed a civil suit against him and that they were in financial straits. Further, he claims that it is evident that the victim’s father was trying to extort money from him given the substantial and unreasonable delay in reporting the incident to authorities and the discussion that occurred between appellant and the father, where the father decided to delay his decision on what he was going to do. He argues that the parents’ testimony shows that they were confused about the specific dates when important events occurred. He claims that when no money was forthcoming, the parents then decided to make a report to the police that their child had been sexually assaulted. Therefore, he claims that the verdict was contrary to the law and evidence and should be set aside.
A child’s testimony describing where she was inappropriately touched need not be corroborated to be sufficient evidence to support a conviction for sexual assault. E.g., McGalliard v. State, 306 Ark. 181, 813 S.W.2d 768 (1991). Here, the child testified in great detail as described above. Further, her father testified that appellant did not deny the allega tion when confronted, stating, “I have been taking some medication that got me acting |7crazy ... I didn’t know what I was doing ... I’m sixty-years old ... I’m too old to go to jail.” The child’s testimony alone is sufficient to support the verdict. Moreover, her testimony was corroborated by the tacit admission of appellant. Apparently, the jury found them both credible. Because the verdict was supported by substantial evidence, we affirm the conviction.
Evidence Admitted in Sentencing Phase
Appellant also claims that the trial court erred in permitting thirty-five-year-old, uncharged-misconduct evidence to be admitted during the sentencing phase of the trial. We agree with appellant’s argument. The admissibility of Ms. Turn’s testimony was argued at three separate points during the proceedings. The trial court excluded the testimony in the guilt-innocence phase of the trial, finding that the evidence would be more prejudicial than probative. The trial court noted the differences between the two events and found that they were not sufficiently similar to be admissible, coupled with the fact that the events were separated by great space in time. However, the trial court allowed the evidence to be admitted during the sentencing phase on the- basis that it would be relevant character evidence. The trial court refused to alter its ruling after hearing arguments related to appellant’s post-trial motion for relief, where he claimed that he should receive a new sentencing proceeding because Ms. Turn’s testimony should not have been allowed.
IsWe apply an abuse-of-discretion standard to a trial court’s decision to admit evidence in the penalty phase of a trial. See Crawford v. State, 362 Ark. 301, 208 S.W.3d 146 (2005). Arkansas Code Annotated section 16-97-103 (Repl.2006) provides in pertinent part:
Evidence relevant to sentencing by either the court or a jury may include, but is not limited to, the following:
(5) Relevant character evidence;
(6) Evidence of aggravating and mitigating circumstances. The criteria for departure from the sentencing standards may serve as examples of this type of evidence;
(8) Evidence held inadmissible in the first stage may be resubmitted for consideration in the second stage if the basis for exclusion did not apply to sentencing^]
The Arkansas Rules of Evidence apply during the penalty or sentencing phase of trial. Buckley v. State, 349 Ark. 53, 76 S.W.3d 825 (2002). Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Ark. R. Evid. 401 (2009). Pursuant to section 16-97-103, certain evidence is admissible at sentencing that would not have been admissible at the guilt phase of the trial. Buckley, supra.
Evidence of uncharged and subsequent misconduct has been held admissible as relevant to sentencing. See, e.g., Rhodes v. State, 102 Ark.App. 73, 281 S.W.3d 758 (2008) (fifteen-year-old girl’s testimony that she also had been raped by appellant — for which appellant was not on trial — was admissible during penalty phase of trial as relevant evidence of appellant’s character); Davis v. State, 60 ArkApp. 179, 962 S.W.2d 815 (1998) (finding no terror in trial court’s admission of prior, uncharged misconduct during sentencing phase); Crawford, supra (evidence of sub sequent drug offenses admissible during sentencing).
Past criminal behavior proven by a preponderance of the evidence may be considered by a sentencing court even where no conviction resulted. Marshall v. State, 342 Ark. 172, 27 S.W.3d 392 (2000). Thus, a broad range of evidence has been held to be admissible during the sentencing phase of trials. However, the admission of evidence in the sentencing phase of a criminal trial is not boundless. See Walls v. State, 336 Ark. 490, 986 S.W.2d 397 (1999) (where the supreme court noted that it was unfair for the sentencing judge to consider an uncharged, unproven crime for sentencing purposes).
Appellant argues that Ms. Turri’s testimony was inadmissible in the sentencing phase for the same reasons it was at the guilt-innocence phase — it was too remote in time and given the dissimilarities between the uncharged misconduct and the evidence concerning the assault at issue, whatever probative value the evidence may have had was substantially outweighed by the danger of unfair prejudice. Appellant further contends that the evidence proved prejudicial, as appellant received the maximum term of imprisonment. See Townsend v. State, 308 Ark. 266, 824 S.W.2d 821 (1992). Appellant claims that it is clear that the evidence was so remote that the jury could have found that appellant had engaged in bad behavior for the many years in the interim.
Appellant also argues that the admission of evidence here was inconsistent with Rush v. State, 324. Ark. 147, 919 S.W.2d 933 (1996), wherein it was held that error occurred when |10the trial court allowed the State to offer evidence underlying a prior conviction to the jury in the penalty phase of a trial. He contends that if the conclusion in Rush is compelling in a case where there was at least a trial with all its attendant protections and a resulting conviction, which was never overturned, that conclusion is no less compelling in a case involving an unsubstantiated, uncorroborated, un-investigated, unreported, and uncharged sexual-assault allegation occurring some thirty-five years prior to the offense for which appellant was standing trial. We agree.
The State argues that the trial court properly admitted the evidence. It claims that the probative value of character evidence is heightened when a jury is instructed that it may consider an alternative sentence, such as probation, as was done here. It further argues that this is true because factors relevant to a consideration of probation include whether there is undue risk that the defendant will commit another offense; if defendant’s conduct was the result of circumstances unlikely to recur; and if the character of the defendant is such that he would be unlikely to commit another offense. See Ark.Code Ann. § 5 — 4—301(b)(1) and (c)(8)(9) (Repl. 2006).
The State further contends that aggravating circumstances, as set forth in Arkansas Code Annotated section 16-97-103, encompasses any circumstance that increases the enormity of an offense or adds to its injurious consequences, but which is above and beyond the essential constituents of the offense itself. E.g., Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994). The State claims that evidence of similar criminal activity can be considered an | n aggravating factor because it shows the defendant’s propensity to engage in the same activity in the future. Id.
The State also argues that the pedophile exception is applicable during the sentencing phase of the trial. See Crawford, supra. The pedophile exception allows what might otherwise be inadmissible evidence to become admissible in child abuse and incest cases. E.g., Clark v. State, 323 Ark. 211, 913 S.W.2d 297 (1996). Therefore, the State argues that, pursuant to the standards as set forth above, the trial court did not abuse its discretion by admitting Ms. Turri’s testimony. It claims that the testimony was relevant character evidence in that it demonstrates the depraved instinct of appellant and shows that his crime was not the result of circumstances that are unlikely to recur in the future. The State contends that the incident Ms. Turri described was similar in conduct as that described by B.R., as both were little girls that appellant kissed and fondled.
The State cites MacKool v. State, 365 Ark. 416, 456, 231 S.W.3d 676, 705 (2006), where the Arkansas Supreme Court held that evidence of a thirty-two-year-old investigation of the defendant was admissible in the sentencing phase of the trial as relevant character evidence. There, a homicide detective testified that he had interviewed the defendant during a 1972 investigation of the death of a fourteen-year-old boy. Id. The detective then read a statement to the jury that he had taken from defendant in 1972, where defendant described kicking the victim after the victim had thrown up in defendant’s car. Id. After reading the statement, the detective confirmed that the victim had died as a result of the incident. Id. I^The distinction here is that the thirty-two-year-old evidence was a statement made by the defendant himself, and not an allegation by the victim. Further, the statement was a result of a formal complaint that was investigated by police. However, the evidence at issue before us was not a statement given during an investigation, but an uncorroborated allegation from the victim of an alleged bad act that occurred more than thirty years in the past.
The State also argues that Crawford, rather than Rush, is the case upon which we should rely. In Crawford, the supreme court allowed subsequent criminal conduct to be admitted during the sentencing phase of the trial as an aggravating factor. See Crawford, 362 Ark. at 305, 208 S.W.3d at 149. The State contends that Ms. Tur-ri’s testimony was relevant here to show aggravating circumstances because it demonstrated appellant’s propensity to take advantage of children who are under his care.
However, Crawford can be distinguished in that the subsequent crime, even though it had not been adjudicated, was close in time to the charged offense. Ms. Turri’s testimony was of an event that was extremely remote in time — thirty-five years. Further, the pedophile exception had been analyzed by the trial court in its ruling on the motion in limine before the guilt-innocence phase of the trial. The circumstances were different in that the ages were dissimilar and the appellant had authority over Ms. Turri, but arguably, not of his neighbor.
In Rush, the court held that the State may only introduce general evidence of prior convictions and may not attempt to retry a previous case through the introduction of testimony. Rush, 324 Ark. at 152-53, 919 S.W.2d at 936-37. The Rush court stated:
| T.qHere, proof of aggravating circumstances is not at issue. Rather, the issue is how to appropriately advise the jury of the nature of a previous conviction. We hold that live testimony from a victim of a crime which occurred five years earlier goes far beyond advising the jury of the nature, or general character, of that conviction. A certified copy of the information and judgment of conviction would have easily sufficed. There are substantial policy consider ations involved in holding as we do today. First, a defendant should not be forced to defend a second time against a previous charge and conviction. Nor should a defendant be permitted to offer testimony in mitigation of an earlier conviction. Secondly, judicial economy factors into our decision because cross-examination will inevitably follow direct examination of a victim, as it did in the instant case, and the spectre of a trial within a trial looms large. We can see how allowing mini trials of a crime five years later could work to the disadvantage of both the State and the defense. Witnesses could disappear, evidence could be lost, and memories could fade. Without clear direction from the General Assembly that advising the jury of the nature of the previous conviction entails live testimony from victims of those crimes, we decline to interpret the statute as permitting it. For that reason we reverse the sentence and remand this case for the limited purpose of resen-tencing.
Id. at 153-54, 919 S.W.2d at 936.
The State argues that Rush is inapposite because it addresses the introduction of extraneous testimony about pri- or convictions and is applicable to an interpretation of the term “nature” of a previous conviction. Id. at 151, 919 S.W.2d at 934-35. The State argues that here, there is no prior conviction, but evidence of uncharged conduct. However, that argument goes to the heart of this court’s concern. There was no record of conviction that could have been introduced, as was the case in Rush. Here, the evidence admitted over appellant’s objection was at least thirty-five years old, had not been investigated, and had not been charged. The protections mentioned by the court in Rush are all the more applicable in a situation where the defendant had not been charged, much less convicted. To have fallowed this evidence in under the guise of aggravating circumstances was an abuse of discretion. Accordingly, we reverse and remand for re-sentencing.
Reduction of Sentence
Appellant argues that the trial court erred in not granting him a reduction in sentence, pursuant to Arkansas Code Annotated section 16-90-107(e), in that the jury’s recommendation of sentence occurred as a result of passion and prejudice. However, because we reverse and remand for resentencing, we need not address this issue.
Affirmed in part; reversed and remanded in part.
MARSHALL, J., agrees.
BAKER, J., concurs.
. Ms. Turri recounted being thirteen years old and staying for one month with her cousin, appellant's wife, while appellant was stationed in California. She testified that when appellant came home for a weekend visit and Mrs. Brown was gone to church, appellant began kissing her and she moved away from him. He felt her breasts, and she moved away again. She went into the bedroom she was staying in, and appellant followed her. He positioned himself on top of her on the bed and was feeling her breasts. When he started to stick his hand down her pants, she panicked and told him she had to go to the bathroom. She stayed there until Mrs. Brown came home. She did not tell anyone of the incident for about twenty years. She claimed that she came forward with the information after having been told of appellant’s arrest by a family member.
. Even though appellant states this point as his third on appeal, we address it first because double-jeopardy considerations require this court to consider a challenge to the sufficiency of the evidence prior to other assignments of trial error. Benjamin v. State, 102 Ark.App. 309, 285 S.W.3d 264 (2008). | [
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DAVID M. GLOVER, Judge.
11 Appellant, Glenda Dearman, worked as a lumber grader for appellee Deltic Timber. Twice each day, once before lunch and once after lunch, Deltic shut down the mill production for mandatory fifteen-minute breaks. On September 18, 2006, at the beginning of one of the mandatory breaks, Dearman tripped over a board on her way to the break room and injured her left shoulder. The administrative law judge found that Dearman had proven by a preponderance of the evidence that she had sustained a compensable left-shoulder injury; that the medical treatment she received for her left shoulder was reasonable and necessary; and that she had established a decrease in wage-earning capacity equal to ten percent to the body as a whole, over and above her eleven-percent anatomical-impairment rating. Deltic appealed to the Commission, which reversed the ALJ’s decision, finding that Dearman was not performing employment |2services at the time of her injury. Dearman now appeals, arguing that her injury is compen-sable because, at the time she was injured, she was doing something generally required of her by her employer. She further contends that she is totally disabled and should be awarded benefits for that disability. We agree with Dearman’s argument that she was performing employment services at the time of her injury, and we reverse and remand on that basis. We are unable to reach the merits of Dear-man’s second argument.
Standard of Review
In Clardy v. Medi-Homes LTC Services LLC, 75 Ark.App. 156, 160, 55 S.W.3d 791, 798 (2001) (citations omitted), this court set forth the standard of review concerning the sufficiency of the evidence in workers’ compensation cases:
On review, this court will affirm if the Commission’s decision is supported by substantial evidence. To determine if the decision is supported by substantial evidence, this Court views the evidence in the light most favorable to the Commission’s findings and affirms if reasonable minds could have reached the same conclusion. Where a claim is denied because the claimant has failed to show an entitlement to compensation by a preponderance of the evidence, the substantial-evidence standard of review requires the reviewing court to affirm the Commission if its opinion displays a substantial basis for the denial of relief. The injured party bears the burden of proof in establishing entitlement to benefits under the Workers’ Compensation Act and must sustain that burden by a preponderance of the evidence. The provisions of the Workers’ Compensation Act were formerly construed liberally. However, Act 796 changed the former practice and mandated that the Commission and the courts construe the provisions strictly.
Hearing Testimony
At the hearing, Dearman testified that as a lumber grader, the lumber would come to her on a chain belt, and she would have to look at the top side of the lumber and then flip the lumber over and look at the other side. She explained that the grading process was |svery fast, that it worked sort of like an assembly line, and that she worked in concert with the other timber graders. Dearman explained that there were mandatory breaks at work, and that when the whistle blew, the machines were shut down and everyone went on a fifteen-minute break. She said that there was nothing for her to do during that fifteen minutes except to be on break; that she was not subject to being called back to work during the break; that she did not clock out on her break; that no one, to her knowledge, clocked out on break; and that she was paid for her break. Dearman testified that there was no reason to believe that it was not beneficial to Deltic for everyone to take a break, that it was beneficial to Deltic to rest their workers because they worked long hours and they could not do their job if they were tired.
Dearman testified that on September 18, 2006, when the bell rang signaling a break, she went down the stairs and outside, and she tripped on some lumber that was stacked by the door and fell on her left shoulder. Dearman was eventually diagnosed with a rotator-cuff tear, she underwent surgery in December 2006, and she was ultimately fired for missing too much work.
Jim Phillips, the manager of corporate safety, environment, and insurance at Del-tic, testified that the mill did shut down during break times, and that the employees were paid for those breaks. He was unsure if the employees could leave the premises during those fifteen-minute breaks. He also testified that it was a generally accepted industry practice to give employees breaks so that they could go to the bathroom, take care of their business, get a cold drink, and refresh themselves. He said that it made for happier and more |4efficient employees if they were given breaks and it also promoted safety, all of which was in Deltic’s best interest.
Commission Opinion
The Commission, with Commissioner Hood dissenting, found that a review of the evidence demonstrated that Dearman was not performing employment services at the time she fell and injured her left shoulder. The Commission noted that Dearman was injured on her way to take a break; that she had exited the building in which she worked when she tripped and fell; that there was no work to be performed because production was stopped during the break; and that none of the workers were subject to being recalled to perform work during the breaks. The Commission found that Dearman was not performing employment services at the time she fell because she was going on a break, production had stopped, she was not required to stand ready to assist the employer during that break, and she was therefore not furthering her employer’s interests.
Argument and Analysis
On appeal, Dearman first argues that her injury was compensable because at the time she was injured, she was doing something generally required of her by Deltic.
A “compensable injury” is an accidental injury causing internal or external harm to the body, arising out of and in the course of employment, which requires medical services or results in disability or death. Ark.Code Ann. § 11 — 9—102(4)(A)(i) (Supp.2007). A compensable injury does not include an injury inflicted upon the employee at a time when employment services were not being performed. Ark.Code Ann. § 11 — 9—102(4)(B)(iii). |fiThe same test is used to determine when an employee is performing “employment services” as to determine whether an employee was acting “within the course of employment” — the test is “whether the injury occurred ‘within the time and space boundaries of the employment, when the employee [was] carrying out the employer’s purpose or advancing the employer’s interest directly or indirectly.’ ” Pifer v. Single Source Transportation, 347 Ark. 851, 857, 69 S.W.3d 1, 4 (2002) (quoting White v. Georgia-Pacific Corp., 339 Ark. 474, 478, 6 S.W.3d 98, 100 (1999)). The issue of whether an employee was performing em ployment services within the course of employment depends on the particular facts and circumstances of each case. Texarkana School Dist. v. Conner, 373 Ark. 372, 284 S.W.3d 57 (2008). Our supreme court noted that because Act 796 of 1993 did not define “employment services,” that the appellate courts must define these terms in such a manner that neither broadens nor narrows the scope of the Act. Id. “Employment services” is not limited to duties an employee is hired to do; an employer may enlarge the course of employment by assigning tasks outside the usual scope of employment. Witt v. Allen & Son, Inc., 2009 Ark. App. 561, 2009 WL 2778031. Whether an employer requires an employee to do something has been dispositive of whether the activity constituted employment services. Id.
In Wallace v. West Fraser South, Inc., 365 Ark. 68, 225 S.W.3d 361 (2006), White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999), and Ray v. University of Arkansas, 66 Ark.App. 177, 990 S.W.2d 558 (1999), it was determined that the employees were performing employment services at the time they were injured even though they were on | fibreak because they were subject to being recalled to work during their breaks. In the present case, Dearman was paid for her breaks if she stayed on company premises; however, she was not subject to being recalled during those breaks.
In Matlock v. Blue Cross Blue Shield, 74 Ark.App. 322, 49 S.W.3d 126 (2001), this court reversed the Commission and granted benefits to an employee who fell while returning to her desk from the restroom, referring to the “personal-comfort” doctrine. This doctrine allows a pause to minister to life necessities and holds that an employer is indirectly benefitted in the form of better work from a happy and rested worker. The Matlock court held that whether a worker was performing employment services within the course of employment at the time of the accident was a factual question to be resolved based upon the circumstances of each case, not on blanket notions of “personal comfort,” and it developed six factors to rely upon in determining whether conduct falls within the meaning of employment services in this context. Our supreme court specifically declined to adopt those factors in Collins v. Excel Specialty Products & Crawford, 347 Ark. 811, 69 S.W.3d 14 (2002), but reversed the Commission’s denial of benefits after the worker left her work station to use the bathroom and fell on her way to the restroom, holding that the employee was engaged in conduct permitted by the employer and was entirely consistent with the employer’s interest. The supreme court held that to automatically accept a personal-comfort activity as providing employment services would im-permissibly broaden the requirements of Act 796, but to automatically reject a personal-comfort 17activity as not providing employment services would impermissibly narrow the requirements of Act 796.
In the present case, the mill operated in the context of an assembly-line type setting, and by the employer’s own admission, the mandatory breaks were given so that all employees could take care of personal business, including getting something to drink or using the restroom, at the same time. This provides a direct benefit to the employer — employees are not constantly leaving the line during the day to attend to such matters.
In Wal-Mart v. Sands, 80 Ark.App. 51, 91 S.W.3d 93 (2002), this court affirmed the Commission’s finding that employee was performing employment services when she was struck by a cart and injured while returning her purse to her locker after a scheduled break but before she clocked back into work because she was required by Wal-Mart to store all personal items in her locker. In Moncus v. Billingsley Logging, 366 Ark. 383, 235 S.W.3d 877 (2006), our supreme court held that an employee who was killed in a wreck on the way to a new jobsite was performing employment services because on the day of the accident, the employer had required the employees to assemble at a central location to travel together to the jobsite. The supreme court held that it was significant that the employee was carrying out the express directions of his employer at the time of the accident, even though he was not engaged in the activity for which he was primarily employed — he was performing employment services because he was doing something that was generally required by his employer.
[sIn the present case, Dearman was doing something generally required by her employer. While Dearman was not required to work during her break, she was required to take a break because the plant shut down.
We are cognizant of the holding in Harding v. City of Texarkana, 62 Ark.App. 137, 970 S.W.2d 303 (1998), in which this court denied benefits to an employee who was injured on her way to the smoking area to smoke a cigarette, holding that although such a break might indirectly advance the employer’s interest, it was not inherently necessary to perform the job that the employee was hired to do. However, in the present case, such breaks were inherently necessary for the jobs the employees were hired to do, as evidenced by the fact that the entire factory shut down, all of the employees were required to take their breaks at the same time, and those breaks directly advanced the employer’s interest. This was supported by the testimony of the manager of corporate safety, who testified that it was a generally accepted industry practice to give employees breaks so that they could go to the bathroom, take care of their business, get a cold drink, and refresh themselves; that it made for happier and more efficient employees if they were given breaks; that it promoted safety; and that for all of those reasons, it was in Deltic’s best interest to provide the breaks.
In Wallace v. West Fraser South, Inc., 365 Ark. 68, 225 S.W.3d 361 (2006), our supreme court declined to adopt a bright-line rule that an employee who is on a break is per se performing employment services, holding that it need not address that issue because |9on the facts of that case, Wallace was performing employment services when he was injured. Nevertheless, the supreme court, in a footnote, noted that this ruling did not prevent the appellate courts from considering such a theory in an appropriate future case. However, as in Wallace, we decline to adopt such a bright-line rule in the instant case because, on the particular facts of this case, we find that Dearman was performing employment services at the time she was injured.
Dearman also argues that she is totally disabled and should be awarded benefits for that disability. We cannot address this issue at this time; however, because we reverse the Commission’s dismissal of the claim and hold that Dearman was performing employment services at the time of her injury, the issue of the extent of Dear-man’s disability is now before the Commission for determination.
Reversed and remanded.
GRUBER and BROWN, JJ„ agree. | [
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RITA W. GRUBER, Judge.
|)The parties in this case, Martine Oates and Michael Oates, have a long history of marital strife. They have been in intermittent litigation in the Pulaski County Circuit Court since January 2004. They were finally divorced by a decree entered March 16, 2009, which was appealed and decided as a companion case to this one. Oates v. Oates, 2010 Ark. App. 346, 2010 WL 1609411. In this appeal, Ms. Oates seeks reversal of the circuit court’s order denying her petition for a protective order against Mr. Oates. We find no error, and we affirm the circuit court’s order.
On March 10, 2008, Ms. Oates filed a petition for an order of protection on behalf of herself and her three children: N.O., who was eleven; G.O., who was eight; and A.O., who was five. She contended that Mr. Oates had committed domestic abuse on March 7,122OO8. In her petition, she alleged that Mr. Oates became angry with her in front of their three children and a neighbor’s child; swore at her; and made “horrid remarks” about her, her family, and her religious beliefs. She said that she became concerned for the children’s safety and asked them to leave. To prevent her from using the telephone, she said Mr. Oates “cornered” her in the kitchen and ripped the phone out of the wall, telling her not to call the police. She alleged that her son, G.O., went upstairs to look for his shoes and came down crying and unable to speak at first, eventually saying, “Daddy said horrible things about you, please don’t tell him I said anything.” Ms. Oates and the children went to a neighbor’s house. When Ms. Oates returned, she discovered that Mr. Oates had shoved her personal items down the toilet and ransacked her closet while she was gone.
Ms. Oates’s petition also alleged that Mr. Oates had committed acts of domestic violence before the incident complained of: (1) In March 2005, Mr. Oates hit her across her arms, kicked her in the stomach, and pulled the phone from the wall. This was witnessed by their son, N.O., who was eight years' old at the time. (2) In July 2002, Mr. Oates strangled her when she was pregnant. (3) Mr. Oates threw the family puppy down the stairs in front of N.O.
Before the case was transferred to the Thirteenth Division, the Seventeenth Division awarded an ex parte temporary order of protection on March 10, 2008, and set a hearing for 1 (¡March 26, 2008. The case was transferred to the Thirteenth Division on March 18, 2008, and the Thirteenth Division set a hearing on April 8, 2008. At the conclusion of this hearing, the court offered Ms. Oates additional time on a later date to conclude her case. The court refused, however, to extend the ex parte temporary order of protection, which expired on April 8, 2008. Additional testimony was taken on May 6, 2008.
Ms. Oates testified that on March 7, 2008, a snow day on which the kids were out of school, she and Mr. Oates argued and he called her a “F’ing b-.” She told the boys to leave, at which point G.O. went upstairs. Mr. Oates then closed the living room blinds, which she testified made her afraid. Ms. Oates said that when she went into the kitchen Mr. Oates cornered her behind the kitchen table. She said that when she attempted to get the phone, Mr. Oates ripped it away from the wall. Mr. Oates then went upstairs, and G.O. came down the stairs crying. She and the children left the house. She said that when she returned, Mr. Oates had ransacked her closet and put some of her personal items in the toilet. Ms. Oates testified that she felt threatened and fearful for her safety.
The parties’ neighbor, Cheryl Starry, testified that when Ms. Oates and the children came to the house after the incident on March 7, 2008, Ms. Oates, N.O., and G.O. were crying and G.O. got in the fetal position and would not speak. She said that N.O. told her that Mr. Oates slapped G.O. Ms. Starry testified that she did not inform Ms. Oates of this. |4She also admitted that she did not include this information about G.O. being slapped in a statement she gave about the events on March 7th.
Angela McGraw, a violence prevention coordinator for Safe Places, testified that, while she had never spoken to Mr. Oates, she believed Ms. Oates’s version of the events. She thought that Ms. Oates was a prime example of one who is suffering emotional abuse from domestic violence. Dr. Dawn Doray, a child psychologist, testified that she had counseled the Oateses’ children beginning on March 20, 2008. She testified that G.O. told her that on March 7 his father pulled him into a room, yelled obscenities about his mother, asked him a lot of questions, and slapped him in the face two times. She said that both G.O. and N.O. were afraid of violence from their father. Although she had never spoken with Mr. Oates or read an evaluation by the court-appointed expert, Dr. Paul Deyoub, she testified that she believed Ms. Oates and the children. Her opinion was that the children were victims of domestic violence.
Mr. Oates disagreed with Ms. Oates’s account of the events on March 7, 2008. He admitted that he drank alcohol that day while in the garage watching television. He said that when he came inside, he and Ms. Oates started arguing. He testified that he closed the blinds not to intimidate her but because he likes the blinds closed. He also admitted that he unintentionally cornered her so he could get to the phone to keep her from calling the police. He grabbed the phone and it came off the wall. He said that Ms. Oates was yelling at him, but he testified that he did not threaten her, hit her, or hit or threaten his son.
| BPr. Paul Deyoub is a forensic psychologist who was court-appointed in 2006 to perform an evaluation for purposes of aiding the court in determining custody of the children after Ms. Oates took the children to Ireland for two months and returned when Mr. Oates filed for divorce. He testified at the May 6, 2008, combined hearing regarding custody in the divorce case. His opinion in his twenty-six page report from 2006 stated that Ms. Oates was “shamelessly alienating the children from their father, but so far the targeted child has been N.O. and he is the only one of the three children who is actually alienated from his dad.” He opined that it could become much worse if Ms. Oates continued to influence the children to reject their father. His testimony in the May 6, 2008, hearing was that his opinion had not changed. While he admitted that he had not interviewed the parties or the children since his report in 2006 and that he did not condone Mr. Oates’s behavior as explained to him, he testified that the allegations surrounding the March 7, 2008, events were consistent with his previous findings and that it did not appear to constitute domestic abuse. He testified that the children were not in danger when in Mr. Oates’s care, that the incident was more of the same in terms of the parties’ “hysterical relationship,” that both parties were responsible during these arguments, and that Mr. Oates was not physically abusive to the children.
On October 15, 2008, the court entered an order denying Ms. Oates’s petition for an order of protection because she failed to prove her allegations of domestic abuse by a preponderance of the evidence. In its very detailed order, the court found that the credibility of the witnesses was “of utmost importance” in the case. It then found the testimony of the RStarrys not helpful because they had no personal knowledge of the events but knew only what Ms. Oates had told them. With regard to Ms. Starry’s testimony about Mr. Oates slapping G.O., the court found that she altered her testimony many times about this and the court believed that Ms. Starry was not truthful and was trying to help Ms. Oates. The court also found that the testimony of Ms. McGraw and Dr. Doray was not helpful because neither had ever spoken with Mr. Oates and their views were based solely upon what Ms. Oates had told them. Although the court noted that Dr. Doray testified that G.O. told her Mr. Oates had slapped him, G.O. told her this thirteen days after the alleged incident; and Dr. Doray conceded that there had been numerous previous allegations of abuse, none of which had been substantiated.
The court found that Dr. Deyoub had done the most extensive work with the family, performed the most thorough review, evaluated both parties and the children, and heard similar allegations of abuse. The court agreed with Dr. Dey-oub’s opinion that the March 7, 2008, incident was not domestic abuse and that neither the children nor Ms. Oates were in danger.
The court did not find Ms. Oates to be a credible witness. The court noted that Ms. Oates presented herself as completely without fault and as an innocent victim. The court noted that it was clear from past proceedings that Ms. Oates wanted Mr. Oates to have as little contact with the children as possible. The court also observed that each time Ms. Oates came to court, she testified about additional and more elaborate allegations of abuse.
|7The court did, however, believe Mr. Oates. While the court specifically did not condone Mr. Oates’s behavior on March 7, 2008, it found him truthful and did not believe his behavior rose to the level of domestic abuse. Nor did the court believe that Ms. Oates proved G.O. had been slapped. The court noted that there were no witnesses and that the testimony regarding the alleged incident was inconsistent. Ms. Oates has appealed the court’s denial of her order of protection.
Before addressing Ms. Oates’s points on appeal, we first turn to Mr. Oates’s argument that because the temporary order of protection expired on April 8, 2008, there is no order from which Ms. Oates could appeal. Mr. Oates cites no authority for this proposition and we know of none. Although the temporary order expired, the hearing on April 8, 2008, which was continued on May 6, 2008, concerned a permanent order of protection pursuant to the petition filed by Ms. Oates. The court denied the petition for a permanent order of protection after holding a hearing that extended over two days (April 8 and May 6) in its order entered on October 15, 2008. Ms. Oates has properly appealed from that order.
I. Domestic Abuse
In her first point on appeal, Ms. Oates contends that “as a matter of law” the circuit court erred in denying her petition for a protective order becahse Mr. Oates’s actions “plainly” satisfied the statutory definition of domestic abuse. While Ms. Oates couches this as an issue of law, we do not view this as a question of statutory interpretation, but a question of whether there was sufficient evidence to support the court’s decision. The standard of preview on appeal from a bench trial is whether the trial court’s findings are clearly erroneous or clearly against the preponderance of the evidence. Newton v. Tidd, 94 Ark. App. 368, 231 S.W.3d 84 (2006). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Simmons v. Dixon, 96 Ark. App. 260, 267, 240 S.W.3d 608, 613 (2006). Disputed facts and determinations of credibility of witnesses are within the province of the fact finder. Pablo v. Crowder, 95 Ark. App. 268, 272, 236 S.W.3d 559, 562 (2006).
“Domestic abuse” is defined as “[p]hysical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury, or assault between family or household members.” Ark.Code Ann. § 9-15-103(3)(A) (Repl.2009). In this case, the court had extensive background information on the parties and their children based on several earlier domestic-relations cases filed with the court and a very detailed report from Dr. Dey-oub. In April 2006 the court ordered Dr. Deyoub to perform a psychological evaluation to aid it in determining custody. In this case, the court heard several days of testimony and made comprehensive findings in its written order. It specifically rejected the testimony from Ms. Oates’s witnesses as biased and not credible because none of the witnesses had discussed the incident or the parties’ problems with Mr. Oates. The court also found Ms. Oates to be untruthful and Mr. Oates to be truthful. Credibility determinations are not this court’s to make; disputed facts and determinations of credibility of witnesses are within the province of [ 9the fact finder. Pablo, 95 Ark. App. at 272, 236 S.W.3d at 562.
Although Mr. Oates admitted that the parties argued, that he pulled the phone out of the wall, and that he closed the living room blinds, Mr. Oates testified that he neither threatened Ms. Oates, hit her, or hit or threatened his son. He also testified that he did not intend to frighten Ms. Oates. Thus, Mr. Oates’s testimony offered no evidence of “[p]hysical harm [or] bodily injury” or of “the infliction of fear” of either. Ms. Oates argues that Mr. Oates’s intent is irrelevant because she testified that she was afraid, and that domestic abuse requires only “the infliction of fear of imminent physical harm, bodily injury, or assault.” But Ms. Oates is ignoring a very important finding of the court: it did not believe her. We hold that the court’s finding of no domestic abuse was not clearly erroneous.
II. Dr. Deyoub’s April 2006 Report
Ms. Oates’s second point on appeal is that the circuit court erroneously relied upon Dr. Deyoub’s opinions from April 2006 to conclude that Mr. Oates’s conduct on March 7, 2008, did not constitute domestic abuse. She argues that Dr. Dey-oub’s April 2006 opinions were irrelevant.
The circuit court’s order in this case is ten pages and includes thirty-five numbered paragraphs. Only two of those numbered paragraphs reference Dr. Dey-oub’s testimony. While the court notes that it appointed Dr. Deyoub to evaluate the parties and the children to make a recommendation to it regarding custody in 2006, the court relied on Dr. Deyoub’s testimony and opinion in this case, not on his opinion from 2006. Dr. Deyoub testified in |inthis case that the children were not in danger of abuse from Mr. Oates. While he admitted that he had not interviewed the parties or the children since 2006, he testified that the March 7, 2008, incident sounded like “more of the same” and that it was similar to the allegations Ms. Oates had made earlier. In other words, he did not believe it was domestic abuse. The court found Dr. Deyoub credible and his testimony persuasive.
But the court made its decision in this case on the basis of its belief that Ms. Oates and her witnesses were not credible and that Mr. Oates was credible. The court evaluated the other witnesses and their testimony in the remaining paragraphs of its order. The court simply found that Ms. Oates failed to prove by a preponderance of the evidence that Mr. Oates committed domestic abuse.
III. Parental Alienation Syndrome
In her final point on appeal, Ms. Oates contends that Dr. Deyoub’s testimony should have been excluded because his opinions were based on the widely discredited psychological theory of Parental Alienation Syndrome (PAS). Although we appreciate the voluminous amount of research and argument explaining why this theory has been discredited and should not be used in Arkansas courts, we hold that the issue is not before us in this case.
This issue is not preserved because it was not raised in a timely manner to the trial | n court. Although there is no motion in either the addendum or the record filed in this case, there was a motion filed in the addendum to the companion divorce case to exclude evidence of the parental alienation syndrome. This motion was made over three months after the hearing in this case took place, which was too late. Objections to evidence must be made at the time the evidence is introduced. Edwards v. Stills, 335 Ark. 470, 504, 984 S.W.2d 366, 383 (1998).
Affirmed.
VAUGHT, C.J., and GLOVER, J., agree.
. The petition was assigned to the Seventeenth Division of the Pulaski County Circuit Court, but it was later transferred to the Thirteenth Division because it was familiar with the parties and their claims against one another from several domestic-relations lawsuits filed in the Thirteenth Division.
. The parties agreed that the court would also hear testimony at the May 6, 2008, hearing for the divorce case, filed by Mr. Oates on March 18, 2008, and a petition for an order of protection on behalf of the Oateses’ three children, filed on April 11, 2008, by a representative of Safe Places, a domestic violence advocacy organization.
. An amicus brief was filed pursuant to Ark. Sup.Ct. R. 4-6 in support of this point on behalf of the Arkansas Coalition Against Domestic Violence, Domestic Violence Legal Empowerment and Appeals Project, Leadership Council on Child Abuse & Interpersonal Violence, Justice for Children, National Coalition Against Domestic Violence, and National Association of Women Lawyers. | [
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WAYMOND M. BROWN, Judge.
| McGeorge Contracting Co., Inc., filed a complaint against the City of Little Rock and the Housing Authority for the City of Little Rock (LRHA) in an effort to gain access to Highway 365. Five months later after dismissing the suit for want of prosecution, the Pulaski County Circuit Court entered an order vacating the dismissal, allowing the suit to proceed. The City has appealed from the order, challenging the circuit court’s jurisdiction to enter the order and asserting that McGeorge’s suit is barred by res judicata. McGeorge contends that the dismissal was void and that the circuit court had the authority to vacate it. We previously ordered rebriefing due to the City’s failure to comply with our briefing rules. Now that the City has filed a conforming brief, we hold that the dismissal was valid and that the circuit court lost jurisdiction to vacate it after ninety days had passed. Therefore, we reverse.
|2In November 2002, McGeorge filed its first complaint against LRHA, but that complaint was dismissed for want of prosecution in December 2003. It filed a second complaint against LRHA, alleging the same facts, in March 2007. In July 2008, this complaint was also dismissed for want of prosecution. Despite this dismissal, McGeorge filed an amended complaint in November 2008, adding the City as a defendant. The City responded by filing a motion to dismiss, alleging that the complaint had already been dismissed. On December 8, 2008, McGeorge moved to vacate the July 2008 dismissal. Attached to the motion were affidavits from counsel for McGeorge and for LRHA, both stating that they did not receive prior written notice of the July 2008 dismissal. Three days later, the circuit court vacated the July 2008 dismissal. The City did not respond to the motion until December 22, 2008. In its response, it asked the court to reconsider vacating the July 2008 dismissal. There is nothing in the record showing that the court did so. ■ The City then filed a timely notice of appeal.
The City presents two arguments to this court. First, it argues that the circuit court lacked jurisdiction to enter the order vacating the July 2008 dismissal. It contends that the July 2008 order, despite stating that it was without prejudice, should have been with prejudice and, thus, it constituted a final adjudication on the merits. Because it was a final order, it argues, the circuit court lost jurisdiction to vacate it after ninety days. Second, the City asserts that, because the July 2008 order was a final judgment on the merits, res judicata barred McGeorge from relit-igating the matter. In response, McGeorge argues that the July 2008 dismissal was void under both Arkansas statutory law and the principles of due process. It contends that, because no one [.^received notice of the dismissal, the court was without authority to enter it. McGeorge also asserts that the City’s res judicata argument is not preserved for appellate review.
The matter is still pending in circuit court, but we have jurisdiction to consider an appeal from an order vacating an order of dismissal. A circuit court’s decision under Arkansas Rule of Civil Pro cedure 60 is reviewed under the abuse-of-discretion standard. But to the extent that the circuit court ruled on questions of law, we review them de novo, giving no deference to the circuit court’s ruling on the issues.
We can resolve this appeal by answering one question: was the July 2008 dismissal valid? If the July 2008 dismissal was valid, then the circuit court lost jurisdiction to vacate the dismissal ninety days after entering it. If it was void ab initio, then the second lawsuit technically never ended, and neither Rule 60(a) nor the doctrine of res judicata would bar the suit from continuing. McGeorge argues that the lack of notice voided the July 2008 dismissal under Arkansas Rule of Civil Procedure 41(b), Arkansas Code Annotated section 16-65-108 (Replj-jQ05),4 and the principles of due process.
Rule 41(b) does not provide any relief to McGeorge. In Watson v. Connors, the circuit court entered a dismissal for want of prosecution. Nineteen months later, the appellant asked the court to set aside the dismissal, contending that he did not get the notice of the impending dismissal, as required by Rule 41(b). The circuit court denied the motion, finding that it lacked jurisdiction to vacate the order because the ninety-day period under Rule 60(a) had elapsed. Our supreme court affirmed, and in doing so, it admonished the appellant’s attorney, who claimed that he had no opportunity to correct the entry of the dismissal:
Moreover, to the extent that Watson argues that the failure to notify him of the order of dismissal “effectively dispossessed [him] of any opportunity to contest the entry of the order until the existence of the dismissal order was made known” to him, it should be pointed out that every party and attorney bears a degree of responsibility for keeping up with the posture of his or her case. This court has held that it is “well settled that a judgment will not be vacated where the party against whom it is rendered totally fails to show legal diligence.” A party’s lack of diligence is “significant ... to our consideration of the question of abuse of discretion.”'
It is true that the language of Rule 41(b) provides that a court “shall cause notice to be mailed to the attorneys of records,” and we have consistently construed the word “shall” to mean mandatory compliance. However, we have also stated that, even in the face of language mandating that a court “shall” take a given action, an attorney is nonetheless not relieved of acting diligently.
Although Watson complains of the “obvious” “unfairness of the circumstances,” the Supreme Court has held that the “adequacy of notice and hearing respecting proceedings that may affect a party’s rights turns, to a considerable extent, on the knowledge which the circumstances show such party may be taken to have of the consequences of his own conduct.” Here, Watson took no interest or action in his case |sfor over three years. Because Watson and his attorney should have been aware of the circumstances (and of the possibility that the case might be dismissed pursuant to Rule 41(b) for failure to prosecute), it cannot be said that the trial court abused its discretion in denying Watson’s motion to set aside the order of dismissal.
McGeorge claims that it did not receive notice of the July 2008 dismissal. But, as in Watson, this does not excuse it from being cognizant of the status of the lawsuit. The failure to receive notice under Rule 41(b) did not render the dismissal void.
The question of whether the order was void under Arkansas Code Annotated section 16-65-108 is closer, but we conclude that it was not. The statute renders null and void any order entered without actual or constructive notice. It applies when the order is entered “without any notice whatever,” and a party seeking to take advantage of the statute has the burden of proving lack of that notice.
But our supreme court has affirmed dismissals for want of prosecution even when those dismissals were without notice. This makes sense. Parties are obligated to keep themselves informed of the status of their case. The cases applying section 16-65-108 generally involve | ¿default judgments that were vacated because of insufficient notice of the underlying suit. This case is different. McGeorge clearly had notice of the suit; it simply failed to prosecute it. We are unable to find any case applying section 16-65-108 to void a dismissal for lack of prosecution. And in light of the language in Watson, we hold that section 16-65-108 does not apply to a dismissal for want of prosecution under Rule 41(b).
Finally, McGeorge argues that the July 2008 dismissal violated principles of due process. It argues that the dismissal operates as a deprivation of property without notice. Again, however, McGeorge relies on cases involving circumstances where a party has no notice of the proceedings against him.
The decision in Florence by Matthews v. Taylor is helpful. There, a negligence case was set for trial on August 30, 1995. The day before, the plaintiffs moved for a continuance, citing the need for unavailable witnesses. Neither the plaintiffs nor their attorney appeared on the trial date. The court stated that it would not consider the motion without hearing from both sides. Counsel for the defendant then informed the court that the trial date had been moved three times before. The trial court denied the continuance, finding that it was not properly before the court, and granted the defendant’s motion to dismiss for the plaintiffs’ failure to appear. The |7plaintiffs argued before our supreme court that the dismissal without notice violated due process. In rejecting the argument, the supreme court relied on Link v. Wabash R.R. Co., where the Supreme Court of the United States affirmed a dismissal for the plaintiffs failure to attend a pretrial conference:
Nor does the absence of notice as to the possibility of dismissal or the failure to hold an adversary hearing necessarily render such a dismissal void. It is true, of course, that “the fundamental requirement of due process is an opportunity to be heard upon such notice and proceedings as are adequate to safeguard the right for which the constitutional protection is invoked.” Anderson National Bank v. Luckett, 321 U.S. 233 [, 64 S.Ct. 599, 88 L.Ed. 692 (1944)]. But this does not mean that every order entered without notice and a preliminary adversary hearing offends due process. The adequacy of notice and hearing respecting proceedings that may affect a party’s rights turns, to a considerable extent, on the knowledge which the circumstances show such party may be taken to have of the consequences of his own conduct. The circumstances here were such as to dispense with the necessity for advance notice and hearing.
Our supreme court then recognized the circuit court’s inherent power to dismiss a case for failure to prosecute. In the end, the Florence court affirmed the dismissal, despite the failure of notice.
Under Florence, a court may dismiss a suit without violating a litigant’s due-process rights. While McGeorge’s failure to prosecute does not rise to the level of dereliction seen in Florence, it does constitute behavior for which a court could dismiss the suit without violating McGeorge’s due-process rights. Thus, the record does not show that the July 2008 dismissal was |svoid as a violation of due process.
The July 2008 dismissal was valid, despite the lack of notice. Under Arkansas Rule of Civil Procedure 60(a), the court only had a ninety-day window to vacate that dismissal. It entered its order outside of that ninety-day period. Thus, the order vacating the July 2008 dismissal was void for lack of jurisdiction and must be reversed. Because the circuit court lacked jurisdiction to vacate the dismissal, there is no need to address the City’s res judica-ta argument.
Reversed.
ABRAMSON and HENRY, JJ., agree.
. City of Little Rock v. McGeorge Contracting Co., 2010 Ark. App. 396, 2010 WL 1806655.
. Wal-Mart Stores, Inc. v. Taylor, 346 Ark. 259, 57 S.W.3d 158 (2001) (stating that such an order is the equivalent of an independent action setting aside the judgment); Hill-Rom Co. v. Swink, 65 Ark.App. 71, 984 S.W.2d 834 (1999) (allowing an appellate court to review an order vacating or modifying a judgment when the judgment is more than ninety days old).
. Williams v. Hall, 98 Ark.App. 90, 250 S.W.3d 581 (2007).
. Ark. Dep't of Health & Human Servs. v. Storey, 372 Ark. 23, 269 S.W.3d 803 (2007).
. Ark. R. Civ. P. 60(a) (providing a ninety-day jurisdictional period to modify or vacate final orders); Jordan v. Circuit Court of Lee County, 366 Ark. 326, 235 S.W.3d 487 (2006). We recognize that a court may vacate or modify an order outside of the ninety-day period if one of the exceptions under Rule 60(c) applies, but none of those exceptions apply here.
.372 Ark. 56, 270 S.W.3d 826 (2008).
. Id. at 61-62, 270 S.W.3d at 830-31 (citations omitted).
. White v. Ray, 267 Ark. 83, 85, 589 S.W.2d 28, 29 (1979).
. See Watson, supra; Ball v. Ball, 193 Ark. 606, 101 S.W.2d 431 (1937); Dent v. Adkisson, 191 Ark. 901, 88 S.W.2d 826 (1935).
. Anderson v. Melton, 222 Ark. 892, 263 S.W.2d 909 (1954); Trumbull v. Harris, 114 Ark. 493, 170 S.W. 222 (1914).
. See, e.g., Beck v. Rhoads, 235 Ark. 619, 361 S.W.2d 545 (1962) (reversing a foreclosure decree when the property owners had no notice of the foreclosure action); Woolfolk v. Davis, 225 Ark. 722, 285 S.W.2d 321 (1956) (applying the statute after concluding that the appellees were never served with the complaint); Grinstead v. Wilson, 69 Ark. 587, 65 S.W. 108 (1901) (voiding a decree appropriating property to be a public road when the land owner received no notice of the proceedings).
. 325 Ark. 445, 928 S.W.2d 330 (1996).
. 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962).
. Florence, 325 Ark. at 449, 928 S.W.2d at 332 (quoting Link, 370 U.S. at 632, 82 S.Ct. 1386).
.Id. (citing Gordon v. Wellman, 265 Ark. 914, 582 S.W.2d 22 (1979); Chandler v. Furlow, 209 Ark. 852, 192 S.W.2d 764 (1946)). | [
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RITA W. GRUBER, Judge.
| ¶ Sabrina Donato appeals from an order awarding custody of the parties’ minor daughter, S.W., to the child’s father, Clint Walker. On appeal, Ms. Donato contends that the circuit court erred by awarding custody to Mr. Walker for three reasons: (1) by failing to require Mr. Walker to provide sufficient evidence of a material change in circumstances; (2) by basing its best-interest analysis on its harsh moral judgment of Ms. Donato’s actions; and (3) by failing to find exceptional circumstances to justify separating S.W. from her half sister. We find no error and we affirm the circuit court’s order.
Ms. Donato and Mr. Walker met in California, lived there together for several years, and conceived the child who is the subject of this lawsuit. S.W. was born on October 8, 2004, in Oceanside, California. Shortly thereafter, the parties moved with the child to ^Arkansas, where they lived for three years with Mr. Walker’s parents in Ben Lomand, Arkansas, until they bought a house in October 2008. K.D., Ms. Donato’s eight-year-old daughter, also lived with Ms. Donato and Mr. Walker.
On June 19, 2009, Mr. Walker discovered that Ms. Donato had been exchanging explicit photographs through email with a married man. Mr. Walker confronted Ms. Donato about the photographs in a telephone conversation. At the time, S.W. and K.D. were at the home of Mr. Walker’s parents. After she hung up the phone, Ms. Donato drove to the Walkers’ home, got the children out of bed, and drove them home. Mr. Walker and his father called 911 and then followed Ms. Donato to the house. The parties got into an argument when they arrived, Mr. Walker got in his truck with S.W., and K.D. also got in the truck. Ms. Donato pulled the door to the truck open, told K.D. to get out of the truck, and tried to grab S.W. The parties struggled with the keys to the truck and Ms. Donato fell on the ground.
On June 22, 2009, Mr. Walker filed a petition for order of protection, and the court entered an ex parte temporary order of protection that day. The court also awarded temporary custody of S.W. to Mr. Walker. On June 26, Mr. Walker filed a petition to establish paternity and for custody of S.W. After a hearing on the ex parte order on July 9th, the court kept temporary custody with Mr. Walker and scheduled a final hearing on the order of protection, paternity, and custody for August 6, 2009.
After hearing testimony from Mr. Walker, Ms. Donato, Mr. Walker’s father, and Katie IsCody (a friend of Ms. Donato’s), the court entered an order that established paternity in Mr. Walker, awarded custody of S.W. to Mr. Walker, ordered Ms. Dona-to to pay child support, and granted Ms. Donato standard visitation with S.W. Specifically, the court found Mr. Walker to be the more credible witness and determined that he was a fit parent to raise S.W.; that he had assumed a responsibility to the child from birth, providing care, supervision, and protection; and that it was in S.W.’s best interest for Mr. Walker to have custody. Ms. Donato filed this appeal.
We review child-custody cases de novo, but we will not reverse a circuit court’s findings unless they are clearly erroneous. Taylor v. Taylor, 358 Ark. 69, 77, 110 S.W.3d 731, 735 (2003). Because the question of whether the circuit court’s findings are clearly erroneous turns largely on the credibility of the witnesses, we give special deference to the superior position of the trial judge to evaluate the witnesses, their testimony, and the child’s best interest. Sharp v. Keeler, 99 Ark. App. 42, 44, 256 S.W.3d 528, 529 (2007). There are no cases in which the superior position, ability, and opportunity of the trial judge to observe the parties carry as great a weight as those involving minor children. Judkins v. Duvall, 97 Ark. App. 260, 267, 248 S.W.3d 492, 497 (2007).
Ms. Donato first argues that Mr. Walker did not satisfy the requisite statutory and case-law elements to obtain custody of S.W. The governing statute in this case is Ark.Code Ann. § 9-10-113 (Repl.2009), which provides as follows:
(a) When a child is born to an unmarried woman, legal custody of that child shall be in the woman giving birth to the child until the child reaches eighteen (18) years of |4age unless a court of competent jurisdiction enters an order placing the child in the custody of another party.
(b) A biological father, provided he has established paternity in a court of competent jurisdiction, may petition the circuit court in the county where the child resides for custody of the child.
(c) The court may award custody to the biological father upon a showing that:
(1) He is a fit parent to raise the child;
(2) He has assumed his responsibilities toward the child by providing care, supervision, protection, and financial support for the child; and
(3) It is in the best interest of the child to award custody to the biological father.
Ms. Donato does not claim that the court failed to make the necessary statutory findings or that these findings were clearly erroneous. Rather, Ms. Donato claims that case law, specifically Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993), requires an unmarried biological father to establish- a material change in circumstances in addition to the criteria set forth in section 9-10-113(c) in order to obtain custody.
In Norwood, a finding of paternity was made in 1989 that included provisions for visitation and payment of child support by the father. Norwood, 315 Ark. at 256, 866 S.W.2d at 399. Custody vested in the mother pursuant to Ark.Code Ann. § 9-10 — 113(a). Over two years later, in 1991, the father filed a motion for a change of custody. Id. at 257, 866 S.W.2d at 400. On appeal from the denial of his motion, the father contended that the trial court erred by requiring him to show a material change of circumstances since the finding of paternity. Id. at 256, 866 S.W.2d at 399. The court recognized that in a traditional change-of-custody case, a party must show a change in circumstances since the initial custody order. Id. at 259, 866 S.W.2d at 401. The court rejected the father’s contention that there had been |fino initial determination of custody and held that an initial custody award in the mother was implicit in the paternity order establishing visitation two years earlier. Id. Thus, the court held that the same standards that applied in other custody determinations must be applied to the situation in Norwood — that is, a material change in circumstances must be shown for a change of custody. Id.
This court has distinguished Norwood in several cases where the father requested custody at the time paternity was established — that is, there had been no initial custody determination. In 2004, this court decided Sheppard v. Speir, 85 Ark. App. 481, 157 S.W.3d 583 (2004). In Speir, the mother appealed the trial court’s order awarding custody to the biological father, contending that the father failed to prove a material change in circumstances. Speir, 85 Ark. App. at 489, 157 S.W.3d at 588. We rejected her argument and distinguished the case from Norwood because Mr. Speir’s petition for custody was filed before an order of paternity had been entered and was consolidated with his paternity complaint. We held that the issue of custody had not been resolved and therefore Mr. Speir was not required to show a material change in circumstances.
In two subsequent eases, we clarified that whether a biological father must show a material change in circumstances in addition to the requirements set forth in Ark.Code Ann. § 9-10-113(c) depends upon whether there has been an initial custody determination at the time the father petitions for custody. See Hicks v. Cook, 103 Ark. App. 207, 210, 288 S.W.3d 244, 246-47 (2008); Harmon v. Wells, 98 Ark. App. 355, 255 S.W.3d 501 (2007). In this | ficase, Mr. Walker sought to establish paternity and obtain custody at the same time. The parties lived together with S.W. as a family until June 2009, when Mr. Walker filed his petition. There had never been an order awarding custody of S.W. to either party before that time. The parties agreed that the August 6, 2009, hearing was a final hearing on the order of protection, paternity, and custody. So Mr. Walker was not required to show a material change of circumstances in order to obtain custody of S.W.
Ms. Donato also contends that the trial court erred in “divesting her of custody” due to the court’s perceived concern "with her moral fitness based primarily on her “limited lapse in judgment.” She cites numerous cases that have addressed what constitutes moral inadequacy sufficient to justify a change of custody. In addressing this argument, we begin with the primary consideration in child-custody cases: the welfare and best interests of the child involved. Walker v. Torres, 83 Ark. App. 135, 137, 118 S.W.3d 148, 150 (2003). We also recognize that we must give special deference to the superior position of the trial judge to evaluate the witnesses, their testimony, and the child’s best interest. Sharp v. Keeler, 99 Ark. App. 42, 44, 256 S.W.3d 528, 529 (2007).
The court did not determine it was in S.W.’s best interest to be placed in Mr. Walker’s custody solely because Ms. Dona-to exchanged explicit photographs through email with a married man. In addition to its determination that Ms. Donato’s behavior presented a moral problem for S.W., the trial court also specifically found that Mr. Walker was a more credible witness than Ms. Donato; that Ms. Donato’s temper, yelling, and screaming scared the 17children; that the court believed Mr. Walker’s testimony that Ms. Donato attempted to commit suicide; that Ms. Do-nato had her children take a “seductive” picture of her to email to a married man; that there was testimony that Mr. Walker was an “exceptional” parent; that Mr. Walker was a fit parent and had assumed a responsibility for S.W. from birth, providing care, supervision and protection; and that Mr. Walker had a stable job. At the hearing, Mr. Walker testified that his daughter was very happy living with him and his parents and that she had spent most of her life in that house; that he and S.W. enjoyed doing activities together; that his schedule minimized disruption to S.W.’s schedule and maximized his time with her and his family; and that he lived with and cared for S.W. in Arkansas for two-and-a-half months before Ms. Donato moved from California to Arkansas. Ms. Donato admitted that Mr. Walker was capable of taking care of S.W. Ms. Donato also testified that she was in college and working full time at the Clinique counter at Dillard’s. Testimony of Mr. Walker, his father, and Ms. Donato indicated that Ms. Donato often did not get home from work and school until after 9:00 p.m. After a de novo review, we cannot say that the trial court’s finding that it was in S.W.’s best interest for Mr. Walker to be awarded custody was clearly erroneous.
Finally, Ms. Donato argues that the trial court erred by separating S.W. from her sibling without proof of exceptional circumstances. She quotes from Sykes v. Warren, 99 Ark. App. 210, 217, 258 S.W.3d 788, 793 (2007), in which this court recognized that “unless exceptional circumstances are involved, young children should not be separated from each |sother by dividing their custody.” Once again, we begin with the primary consideration in child-custody cases: the welfare and best interests of the child involved. Torres, 83 Ark. App. at 137, 118 S.W.3d at 150. All other considerations are secondary. Id. While one factor the court must consider in determining the best interest of the child is whether the child will be separated from her siblings, the polestar consideration in every child-custody case is the welfare of the individual child. Harris v. Grice, 97 Ark. App. 37, 42, 244 S.W.3d 9, 13-14 (2006).
We said in Middleton v. Middleton, 83 Ark. App. 7, 15, 113 S.W.3d 625, 630 (2003), that the prohibition against separating siblings in the absence of exceptional circumstances does not apply with equal force in cases where the children are half siblings, as they are in this case. In Eaton v. Dixon, 69 Ark. App. 9, 9 S.W.3d 535 (2000), we affirmed a custody order which resulted in the separation of . half-siblings, recognizing that trial judges cannot always provide “flawless solutions to unsolvable problems, especially where only limited options are available.” Id. at 13, 9 S.W.3d at 537-38 (quoting Respalie v. Respalie, 25 Ark. App. 254, 257, 756 S.W.2d 928, 930 (1988)). Because Ms. Donato’s older daughter, K.D., is not Mr. Walker’s daughter, the trial court had no authority to make a custody determination as to her. The court found that it was in S.W.’s best interest for Mr. Walker to have custody of S.W. Ms. Donato was granted visitation with S.W., and there is no testimony to suggest that the children will not be together during that time. We hold that it was not error for the court to separate the siblings in this case.
I (Affirmed.
VAUGHT, C.J., and BROWN, J., agree. | [
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M. MICHAEL KINARD, Judge.
I ,This is an appeal from the circuit court’s denial of appellant Harold Stacks’s motion to modify custody and motion for contempt. Appellant raises challenges to several evidentiary rulings and to the court’s findings that his daughter had not expressed a preference as to custody and that she was not mature enough to express a custody preference. We affirm.
The parties were divorced in November 2000. Appellee Angela Stacks was awarded custody of the parties’ two minor children, born in 1996 and 1998, with appellant having visitation rights and support obligations. After several years of litigation in this case, an agreed order was entered in April 2008. The agreed order provided that appellee would assist appellant in obtaining copies of the children’s school and medical ^records. It also set a schedule for regular telephone visitation between appellant and the children.
On June 4, 2008, appellant filed in a single document a motion to modify custody and motion for contempt. In the motion, appellant alleged that there had been a material change in circumstances since the divorce — the fact that the children were expressing a preference that they live with him — and that it was in the best interest of the children for appellant to have custody. Citing Arkansas Code Annotated section 9 — 13—101(a)(l)(A)(ii), he contended that the older child, Elizabeth, was “of a sufficient age and capacity to reason” such that the court should consider her stated preference. Appellant alleged that appellee was in contempt for refusing to follow the agreed order by failing to contact the children’s schools and medical providers and not allowing him telephone visitation on “numerous occasions.”
A hearing was held in this matter on December 23, 2008, with appellee appearing pro se. Both parties, their daughter, and a therapist testified. The daughter’s testimony included statements that she was “not real sure” about whether she was happy living where she was, that she was happy at her father’s and at her mother’s, that seeing her father more “would mean a lot,” and that what she did not like about living at her mother’s was there were “too many rules.” The judge issued a bench ruling in favor of appellee. In its subsequent written order, the court found that appellant failed to sustain his burden of proving the contempt allegations. It further found that he failed to sustain Rhis burden of proof regarding his request for a change of custody based on the preference of the minor children.
On January 22, 2009, appellant filed a timely motion for reconsideration and/or motion for a new trial. Appellant requested a new trial based on newly discovered evidence of appellee “improperly influence[ing]” the parties’ daughter regarding her testimony. He also requested that the court reconsider its finding that appellee was not in contempt. The trial court did not rule on appellant’s motion, so it was deemed denied thirty days after it was filed. See Whitmer v. Sullivent, 373 Ark. 327, 284 S.W.3d 6 (2008). This timely appeal followed.
Appellant’s first point on appeal is that the circuit court erred in excluding the parents’ testimony of prior statements of their daughter regarding her preference as to custody under Arkansas Rule of Evidence 802 (hearsay) and in refusing to consider testimony of the therapist regarding the daughter’s statements, which appellant contends were statements of her then-existing state of mind and thus admissible under Arkansas Rule of Evidence 803(3) (then-existing mental, emotional, or physical condition). First, we note that appellant’s objection to the court’s sua sponte ruling excluding inadmissible hearsay is misplaced; a trial judge has the authority to exclude improper evidence even in the absence of an objection. Epps v. State, 72 Ark.App. 370, 38 S.W.3d 899 (2001). Appellant acknowledges that the arguments under his first point were not made before the trial court, but cites Pear-row v. Feagin, 300 Ark. 274, 778 S.W.2d 941 (1989), in arguing |4that this court should entertain his arguments under an exception that applies where there was no opportunity to raise the argument below. He contends that we should consider his argument because the trial court allowed the testimony and then stated during the bench ruling that the only testimony that could be considered regarding preference was that of the daughter.
We do not find appellant’s preservation argument to be persuasive. It is elementary that this court will not consider arguments that are not preserved for appellate review. Advance America Servicing of Arkansas, Inc. v. McGinnis, 375 Ark. 24, 33, 289 S.W.3d 37, 43 (2008) (citing Seidenstricker Farms v. Doss, 374 Ark. 123, 286 S.W.3d 142 (2008)). We will not do so because it is incumbent upon the parties to raise arguments initially to the trial court in order to give that court an opportunity to consider them. Id. Otherwise, we would be placed in the position of reversing a trial court for reasons not addressed by that court. Id. Here, when the court ruled that appellee could not testify regarding what the children had said about custody preferences, appellant did not raise the argument that the testimony should be allowed under Rule 803 as evidence of the daughter’s then-existing state of mind. Appellant not only did not raise this argument at the hearing (where he argues he did not have the opportunity to do so), he also failed to raise these points in his motion for reconsideration. Thus, this point is not preserved for appellate review.
The trial court has broad discretion when it comes to the admissibility of evidence. Meins v. Meins, 93 Ark.App. 292, 299-300, 218 S.W.3d 366, 370 (2005). The appellate |5court will not reverse the lower court’s ruling on either the admissibility of expert testimony or on a hearsay question unless the appellant can show that the court abused its discretion. Id. In order to show abuse of discretion, the appellant must demonstrate that the trial court acted improvidently, thoughtlessly, or without due consideration. Id. Additionally, the appellate court will not reverse an evidentiary ruling absent a showing of prejudice. Id. Under these standards, we affirm the trial court.
We address appellant’s final point next because our decision on this point affects the outcome of other arguments appellant makes. Appellant argues that the trial court’s finding that the daughter was not mature enough to express a preference as to custody was clearly erroneous. Appellant points to the fact that she was within one month of turning twelve years old at the time of the hearing and to the testimony of the therapist and parents regarding her maturity, and he asserts that she “conversed intelligently with the judge regarding her prior expressions of custody preference and the reasons for her reluctance to express that preference on the record.” Arkansas Code Annotated section 9 — 13—101 (a)(l)(A)(ii) provides that, in determining the best interest of the child, the court may consider the preferences of the child if the child is of sufficient age and capacity to reason, regardless of chronological age. The trial judge was in a better position than this court to judge the credibility of the witnesses, including the minor daughter. Consequently, we find no reversible error in the trial court’s finding that the parties’ |f,daughter was not of a sufficient age and capacity to reason that the court might consider her preference as to custody.
Appellant’s second point on appeal is that the circuit court erred in holding that the expert witness’s testimony as to custody preference expressed by the daughter could not be considered as evidence of preference where such statements of preference formed part of the basis of the expert’s professional opinion. In his ruling from the bench, the judge stated that “[t]he only evidence of that the court could consider with regard to that allegation [that the children were expressing a pref erence that they live with their father] is the testimony of Elizabeth Stacks, the daughter.”
Arkansas Rule of Evidence 703 provides that if the facts upon which an expert bases his or her opinion are of a type reasonably relied upon by experts in the particular field in forming opinions on the subject, those facts need not be admissible in evidence. As a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility. See, e.g., Ford Motor Co. v. Massey, 313 Ark. 345, 855 S.W.2d 897 (1993). Thus, to the extent that the therapist’s testimony was “excluded” as hearsay, the trial court erred. However, neither was the court required to attach any weight to the therapist’s testimony. See id. Any possible error here does not warrant reversal under the facts of this ease. As noted above, the court also found that the daughter was not sufficiently mature to express an opinion as to custody. Thus, the exclusion of testimony regarding her preference would be harmless error. See Jackson v. 7Buchman, 338 Ark. 467, 996 S.W.2d 30 (1999) (holding that the party seeking reversal on the basis of an erroneous evidentiary ruling must indicate to the reviewing court what prejudice was caused by the erroneous ruling).
Appellant’s third point is that the trial court erred in holding that the daughter’s statements of preference as to custody contained in business records of the therapist, which were admitted without objection, could not be considered as evidence of preference. Appellant contends that the records were admissible under Arkansas Rule of Evidence 803(6) as records of regularly conducted business activity. In Meins, supra, this court held that statements a child made to a counselor were admissible under Rule 703, which provides that an expert may form an opinion based on facts learned from others despite these facts being hearsay. We need not reach the merits of appellant’s argument because, given the court’s findings regarding the daughter, he cannot show that he was prejudiced by the exclusion of these records.
Appellant’s fourth point is that the trial court’s finding that the daughter had not expressed a preference as to custody was clearly erroneous. Appellant points to “evidence of preference including but not limited to preference expressed to therapist, preference expressed to parents, and evidence of intimidation of witness by mother to prevent expression of preference by daughter on direct examination.” Because the question of whether the trial court’s findings are clearly erroneous turns largely on the credibility of the witnesses, we give special deference to the superior position of the trial judge to devaluate the witnesses, their testimony, and the child’s best interest. Hodge v. Hodge, 97 Ark. App. 217, 219, 245 S.W.3d 695, 697 (2006). Here, the trial court was faced with conflicting testimony, with appellant testifying that the children wanted to live with him, appellee disputing that contention, and the daughter testifying that she did not want to hurt anyone’s feelings and not expressing a clear preference. The trial judge was clearly in a better position than this court to judge the credibility of the witnesses.
Furthermore, the daughter’s preference alone is not determinative of which parent should have custody. Even if the circuit court had found that the daughter expressed a desire to live with her father and that constituted a material change in circumstances, the decision whether to change custody would not end there. In child-custody cases, the primary consideration is the welfare and best interests of the child involved; all other considerations are secondary. Dansby v. Dansby, 87 Ark.App. 156, 160, 189 S.W.3d 473, 476 (2004). Custody will not be modified unless it is shown that there are changed conditions demonstrating that a modification is in the best interest of the child. Id. On this record, we do not conclude that the circuit court erred.
Affirmed.
PITTMAN and BAKER, JJ„ agree.
. The therapist, Virginia Krauft, is a clinical psychologist. | [
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DAVID M. GLOVER, Judge.
| ,This is a fact intensive adverse-possession action between appellants, Troy and Shirley Steele, and appellees, David and Mary Blankenship, who own adjacent properties. Appellees filed an action to quiet title to .95 acres lying between their eastern boundary and appellants’ western boundary, claiming that the land belonged to them under the theory of adverse possession. After taking the matter under advisement, the trial court found that the disputed property had been adversely possessed by appellees and quieted title in them. Appellants now appeal, arguing that the trial court’s decision was clearly erroneous and that the decree quieting title to the property in appellees should be reversed. We affirm the trial court’s decision to quiet title in the Blankenships.
Ii>The Testimony
At trial, Alan Reid, a land surveyor, testified that he had performed a survey for the Blankenships on their eastern boundary in 2000; that they wanted to know the relationship between that boundary and an old fence line over a portion of their property; and that their concern was the relationship between the deed line and the fence line so they could get an approximate idea of how much land was between those two points. Reid said that the width between the deed line and the fence line ranged from ten to fifty feet, but that unless you were looking for the fence it was hard to find at times. He said that portions of the fence were on the ground, but that there were places that the fence was very visible, and that if you knew what you were looking for, you could find wire running through the trees. According to Reid, he saw no evidence of farming, gardening, or grazing, and that because of the rock croppings, it would be difficult to run a fence and fence posts exactly along the deed line. It was Reid’s opinion that the fence line was from the mid-twentieth century.
Otto Moos testified that his home abutted the Blankenship property, and that he had walked the fence line sometime in the 1980s. He testified that he had seen the Blankenships working on the property, and he had seen them cleaning out a portion of the fence line two or three times a year for four or five years, although for the last few years the fence line had been overgrown. He said that he had also seen the children picking up trash. Moos stated that he had seen the Blankenships clearing a little bit of the ground using a brush hog and tractor and also picking up trash that people had thrown out on the blacktop. Moos said that | she had actually walked the fence line, and that the fence had been there long before he was there.
Laura Davis, Mary Blankenship’s mother, testified that she had been familiar with the Blankenship property since the time she had married her husband, which was about sixty-five years ago; that she hiked the property lines with her husband and her mother-in-law, who had owned and lived on the property with her father-in-law; and that her in-laws had moved to the property in the 1980s. Her father-in-law died in 1945, and her mother-in-law died in 1982 or 1983. Davis said that she and her husband visited the property at least once a year; that she was familiar with the fence line from hiking the area many times; and that the eastern fence line had been there as long as she could remember. Davis stated that after her mother-in-law’s death, the land was sold to Mary and David Blankenship, and that while Mary and David did not live there, they came back to visit often and vacationed and camped on the property. Davis said that she saw David and Mary working the fence line on the east side, and that after they moved there, they worked on the fence maybe twice a month or more on weekends; however, on cross-examination, she admitted that she never actually saw them working on the east boundary fence line, but she did see them hauling in fencing on a regular basis to work on the fence. She testified that she had seen David and his son setting poles and fence and barbed wire in November and December 2007 and January 2008. She said that since David and Mary had moved back, she had hiked there probably once a month, and that when she hiked, she did not leave litter and tried to leave no trace that she had been there.
Upon examination by the trial court, Davis said that she could not say that she was aware of the fence line between getting married in 1948 and her father-in-law’s death in |41945. She said that her mother-in-law moved off the property eight to ten years before she die d, but that she continued to go out to the property. Davis did not know who tended the fence line from 1972 or 1974 until Mary and David bought the property, and she said that the first time she saw Mary or David doing anything in the fence line was after David’s retirement about fourteen years ago. She admitted that the old fence line was “up and down,” and that when she saw her family do fencing, they were building in the same line as the old fence.
Joseph Blankenship, Mary and David Blankenship’s twenty-four-year-old son, testified that he had been familiar with the property since he was six years old. He said that before they moved back, the family would visit and camp on the land frequently. Joseph testified that he remembered being shown the fence line at the age of six or eight and being told that he could not go past the fence because it was off their property. He said that before they lived there, they did nothing in the disputed area except walk and do minor tree and brush cleaning. Joseph said that when they moved back, the visits to the land became more regular, and around 2002, they really began putting up the fence and maintaining it. He said that before the fence was finished, part of the fence was bulldozed down and some of the posts were stolen. He said that in August 2008, the eastern boundary fence was probably half new fence over existing fence. Joseph also testified that he had played paint ball in the area in question within the last two years, cut wood in that area, and walked the fence line when he went on nature walks.
Mary Blankenship testified that they bought their property in 1988; that she was familiar with the property prior to purchasing it; that she would come to the property to visit |sher grandmother; and that she also visited the property and stayed in the log cabin located there after her grandmother moved. Mary stated that her father noted in a survey he performed himself in 1976 that the deed line and the fence line did not match, and that she knew it as well; however, after the property was surveyed, her father continued to use the property to the fence line. She said that the area in dispute was about the “most impossible” area to get to because there was no road from the blacktop, and that because it was steep and wooded coming down the hill, what little her husband had managed to do required that he haul fencing materials in himself. She said that the area in dispute was not their sole focus, and that other than her husband working on the fence and the family going on nature walks, they did not otherwise use or visit the disputed area. Mary testified that they never crossed the fence line.
Mary testified that she and David had paid taxes on the property since they bought it. She said that she knew there was a dispute when they saw the deer feeder on the disputed property, and that they were aware of the survey and had seen pink ribbons in the trees. She introduced pictures that showed the new fence posts that her husband had erected, as well as a photo showing the old fence line and old posts, and the wires going through a large tree up the bluff.
On cross-examination, Mary admitted that some of the fencing was on the ground, and that there were gaps in the fence that could be walked through. She said that other than hiking and some fence repair, she had no other use for the disputed property because it could not be gardened, and they were not running livestock. She said that there were no paths or | (-.trails along the fence line where they hiked, but that sometimes she would bring clippers and cut the briars.
Troy Steele testified on his own behalf that he had purchased his property about four-and-a-half years ago and that he was building a house on his property that overlooked the Blankenship property. He said that he had walked the fence line to the north end of his property and had also walked the deed line, and that he was familiar with the property in dispute. Steele said that he had installed a deer feeder in the middle of the disputed area, and that until he received a note from David Blankenship in November 2007 and saw some metal posts Blankenship had set, he had never seen anyone on the disputed property, and there was nothing to give him any indication that other people were using the property between the deed line and the fence line. Steele said that the fence was old and deteriorating; that he had not seen any of the repairs testified to by Mary Blankenship when he walked the fence line; that there were areas where there was no fence, where the fence was not on posts, and only a small area where the fence was in “decent” condition; and that it did not appear that there had been any repairs made to the fence line within the last ten years. Steele testified that he had cleared briars in the disputed area before putting up the deer feeder, and that he had cut firewood there prior to that. He said that he had removed fencing along the boundary line in January, shortly after talking to Mary Blankenship.
Ronald Isles, a neighbor of Steele, testified that he was familiar with the land involved in the lawsuit and, that for about three years, he had not seen any form of activity on the property except Steele filling up the deer feeder. Isles stated that the property was rugged and that it was difficult to put a fence in a straight line. He did not think that there was enough 17fencing to constitute a line, and he said that the only fencing he was aware of was old, not new.
In rebuttal, Mary Blankenship testified that she remembered talking to Steele, but that they did not talk about the disputed property. She disagreed that, other than 100 feet, the fence was down, and said that her husband had attempted to preserve the old wire because it marked the old boundary.
The Ruling
After the hearing, the trial court took the case under advisement and issued a letter opinion. In that opinion, the trial court found that the Blankenships purchased their land from Mary Blankenship’s relatives by deeds filed December 7, 1998, and that it was not disputed that the Blankenships were in possession of their property and had paid the taxes on the property since that time.
The trial court further found that Mary Blankenship’s relatives, beginning with her grandparents, owned the property now owned by Mary and David since 1931, and that the undisputed testimony of Laura Davis, Mary’s mother, established that when she first visited the property in question about sixty-five years ago, there was a fence along the “disputed area”; that she had visited the property at least once a year since that time and hiked the fence line on a regular basis; and that the fence was there on each occasion. The trial court also found that Mary’s father performed an informal survey of the property in 1976 with appropriate surveying equipment and found that the deed description and the fence line did not match.
| «The trial court noted the testimony of Joseph Blankenship, who testified that he was told not to cross the fence line, as he would be on other people’s property. Joseph remembered helping his parents clean the brush along the fence line in his younger years, and he testified that as a young adult, had helped his father repair some of the existing fence line. The trial court found that the evidence established that since the family had moved back in 1996, they had continued to walk the fence lines, that Joseph and his friends played paintball within the last two years, and that the family had continued to camp in the area close to the fence. The trial court further found that due to the rock outcroppings in much of the disputed area, both sides agreed that it would be impossible to brush hog along the entire fence line on either side.
The trial court found that the Steeles purchased their property about four-and-a-half years before the legal action; that Troy Steele had been on the property almost every day for at least the past two years while building a house; and that Steele testified that much of the fence was on the ground, with only seven or eight standing posts, that the fence was old and deteriorating, and that he had seen no repairs. The trial court noted that Ronald Isles’s testimony confirmed Steele’s testimony that Steele was on his property once a day; that the terrain in the disputed area was rugged; that there was rusted barbed wire on the ground; and that Isles had never seen any activity in the disputed area and had not noted the fence along the road, although he did not deny its existence.
The trial court found that the exhibits established that there was some upright fencing, some fencing growing through the trees, some new fence posts, some barbed wire partially on the ground, and some clearly visible fencing along the roadway. The trial court also found |9that the evidence established that one or two years ago, after a discussion with Mary Blankenship, Steele erected a deer feeder; the Blankenships asked him to remove it from “their” property; and that Steele, after recognizing that a dispute existed, bulldozed some of the fence work.
The trial court found that for at least the last sixty-five years, the Blankenships and their predecessors in title had considered the fence to be the boundary line, even though they knew it did not match the property-line descriptions; that they had possessed the disputed area by maintaining the fence, using the property for camping and hiking, cleaning the brush in the fence line, and removing fir trees from time to time; and that this activity had been continuous for over sixty-five years. The trial court found that the Blanken-ships and their predecessors in title had the necessary intent to adversely possess the property because since 1976, when Mary Blankenship’s father performed the informal survey, they knew of the contradiction between the survey and the deeds and continued to possess the property.
The trial court found that fencing or maintaining a fence was an act of ownership evidencing adverse possession; that the fact that the fence may have been degraded did not necessarily mean that the property was no longer enclosed; and that the fence in this case was visible enough so that all parties knew of its existence when they purchased their property. The trial court determined that the area was enclosed, so that the Blanken-ships’ possession of any part, and that of their predecessors in title, was also constructive possession of the entire area; that the possession was inferred by the maintenance of the fence, improvements made to the remaining area of the enclosed land, and mowing and clearing where they could; that the Blankenships’ actions were open and notorious; and that they had actually possessed the | ^property in question. The trial court further found that while Steele claimed that he never saw the Blankenships performing any activities on the disputed land, a landowner had a duty to keep himself informed as to the adverse occupancy of his property, and that the visible fencing along the roadway was sufficient to put Steele on notice to investigate adverse possession of his property. The trial court determined that the Blank-enships’ period of adverse possession was concluded prior to the Steeles purchasing their property and quieted title in the Blankenships.
Standard of Review
Equity cases are reviewed de novo on the record, and the appellate courts do not reverse the trial court’s findings of fact unless they were clearly erroneous. Boyd v. Roberts, 98 Ark.App. 385, 255 S.W.3d 895 (2007). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed. Ward v. Adams, 66 Ark.App. 208, 989 S.W.2d 550 (1999). In reviewing a trial court’s findings of fact, the appellate courts give due deference to the trial court’s superior position to determine witness credibility and the weight to be accorded their testimony. Boyd v. Roberts, supra.
Discussion
On appeal, the Steeles argue that the trial court was clearly erroneous in its finding that the Blankenships adversely possessed the property in question and that the decree quieting title should be reversed. We disagree.
To prove adverse possession, there are six distinct and necessary elements that an adverse claimant must show before that possession ripens into ownership — the possession must |nbe (1) actual; (2) visible and notorious; (3) distinct and exclusive; (4) of a hostile character; (5) accompanied by an intent to hold adversely against the true owner; and (6) for a period of seven years’ continuous duration. Clark v. Clark, 4 Ark.App. 153, 632 S.W.2d 432 (1982). The Clark court addressed each factor in greater detail:
The first five elements deal with the required nature and extent of the possession. Proof as to those factors may vary and must be measured by reasonable view as to the location and character of the land itself. It is ordinarily sufficient if the acts of ownership are of such a nature as one would exercise over his own property and would not exercise over that of another. The act must amount to such dominion over the land as it is reasonably adapted to and under circumstances as would put the true owner on actual or constructive notice of an adverse claim. Those acts of control which might constitute efficient dominion and notice as to one tract might not be held sufficient in another case.
The extent of required possession also may vary in accordance with the circumstances. One who enters adversely under color of title and actually possesses any part of the tract is deemed to have constructive possession of the entire area described in the document constituting color of title. Where one enters adversely upon an enclosed tract his possession of any part thereof is constructive possession of the entire enclosure.
However, the sixth element permits no variation. The adverse possession must be maintained for a period of seven full, consecutive years. To constitute effective adverse possession the possession must be continuous for the full period. If there is a break in the continuity of the adverse holding the period of limitations begins anew.
Clark, 4 Ark.App. at 159-60, 632 S.W.2d at 436-37 (citations omitted). Whether possession is adverse to the true owner is a question of fact. Ward v. Adams, supra.
Under their point on appeal, the Steeles discuss five subpoints, all of which they contend that the trial court used to determine that the Blankenships had adversely possessed the disputed area.
| ^Hiking. The trial court noted that for sixty-five years, Mary Blankenship’s mother, Laura Davis, had visited the property at least once a year and hiked the fence line on a regular basis, and that the Blankenship family had walked the fence line since 1996. The Steeles argue that unless they just happened to be present along the fence line and the disputed area on one of the intermittent hikes, they would have no way of knowing that anyone had been hiking because of the “leave no trace” standard employed by Davis and the Blankenship family and by the lack of any trails in the disputed area.
1976 Survey. The Steeles argue that there was no testimony that the results of the informal survey were ever communicated to the adjoining landowner regarding the discrepancy between the deed line and the fence line, that the discrepancy was only discussed among the Davis and Blankenship families. The Steeles argue that even though Mary Blankenship testified that after the survey her father con tinued to use the property to the fence line, there was no testimony or evidence as to what that use was so as to determine if the adjoining landowner should have been put on notice that there was an adverse claim to the disputed area up to the fence line.
Camping. There was testimony that during the last eighteen years, the Blankenship family had camped on the land for a week at a time. However, the Steeles argue that there was no testimony that the camping occurred in the disputed area, and that Mary Blankenship had testified that other than working on the fence and taking nature walks, there was no other use or visiting up there.
Removing brush and trees. The Steeles argue that Joseph Blankenship’s testimony that his parents cleaned up small amounts of brush was insufficient to indicate that such | ^cleaning changed the nature or character of the disputed area so as to put the adjoining landowner on notice that the property was being adversely claimed. They also point out that there was no testimony that any trees removed were on the fence line.
Fence-line repair and paintball. There was testimony that in 2002, David and Joseph Blankenship repaired some of the existing fence line and that since 2007, Joseph and his friends had played paintball near the fence. The Steeles argue that consideration of these activities by the trial court was improper because the Blankenships filed their petition to quiet title on August 29, 2008, and that neither activity had been going on for the requisite seven years to constitute adverse possession.
We do agree that the trial court improperly considered the paintball sessions and the fence repair, if considered in isolation, as those activities clearly had not been being performed for the requisite seven years. Likewise, intermittent camping, hiking, and brush clearing, considered by themselves, generally are insufficient to lay a claim to the property by adverse possession. However, on the evidence, we hold that the trial court’s decision was correct.
The trial court found that the area was enclosed by a fence. Fencing the disputed area is an act of ownership evidencing adverse possession, and the fact that the fence may be degraded does not necessarily mean that the area is no longer “enclosed”; the question is whether the enclosure is sufficient to “fly the flag” over the land and give notice to the true owner that the land is being adversely claimed. Boyd v. Roberts, supra. Where one enters adversely upon an enclosed tract his possession of any part thereof is constructive possession of the entire enclosure. Clark, supra. “Where a landowner is under a belief that he owns certain lands enclosed with his owns lands and he exercises dominion over a portion of the |Menclosed lands adversely to the record owner for the required statutory period of time (seven years) such constitutes an investiture of title to the entire tract.” Kieffer v. Williams, 240 Ark. 514, 517, 400 S.W.2d 485, 487 (1966). Following the 1976 survey of the fence line, the appellees’ frequent acts of camping, hiking, and brush clearing, considered together, support their asserted belief that they owned the lands within the fenced area for the required statutory period of time. Furthermore, a landowner has a duty to keep himself informed as to any adverse occupancy of his property. Boyd v. Roberts, supra. Because the land in dispute had been enclosed for at least sixty-five years, the statutory seven-year period for adverse possession had been met long before the Steeles purchased their property. We cannot say that on this set of facts the trial court’s decision to quiet title to the disputed area was clearly erroneous.
Affirmed.
GRUBER and BROWN, JJ., agree.
. The Blankenships filed suit against the Steeles and Rick Evans, another land owner, but Evans did not appear at the hearing in circuit court, and he has not appealed the decision. | [
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DAVID M. GLOVER, Judge.
| T Matt and Christy Valentine were married in 1996 and divorced in 2006. During the marriage, they had two children, a girl, M.G. (DOB 3/28/98), and a boy, J.M. (DOB 7/6/00). At the time of the divorce, the parties agreed they would have joint custody, with Christy having primary physical custody. By petition filed September 27, 2007, Christy sought modification of the divorce decree, alleging material and substantial changes in circumstances entitling her to an increase in child support. Matt responded, denying that an increase was warranted and counterclaiming for sole custody of the children. Following a six-day hearing, conducted over two months, the trial court granted Christy’s request for additional child support and attorney’s fees and denied Matt’s counterclaim for sole custody. |2Matt challenges the trial court’s denying him custody of the children, increasing his child-support obligations, and awarding Christy attorney’s fees. We affirm.
I. The trial court erred in refusing to award Matt Valentine custody of his children.
The essence of Matt’s argument under his first point of appeal is that he demonstrated evidence of Christy’s adulterous conduct both before and after the divorce, which justified a change of custody, and that — in light of such evidence — the trial court erred in refusing to change primary custody to him. In making the argument, he raises several subpoints: 1) that the trial court erred in concluding Christy has somehow reformed her behavior, 2) that the trial court erred in imposing a burden on Matt to prove the existence of an adverse impact on the children, 3) that the trial court erred in failing to presume that Christy’s illicit sexual conduct is detrimental to the children, 4) that the trial court’s finding that Christy was incapable of instructing the children on the institution of marriage required a change of custody, and 5) that the trial court erred in punish ing Matt for not disclosing Christy’s illicit sexual behavior at the time of the divorce. We find no basis for reversal in these subpoints under this global argument.
Standard of Review
This court repeated its familiar standard of review for custody cases in Harrison v. Harrison, 102 Ark.App. 131, 133-34, 287 S.W.3d 601, 604 (2008):
In reviewing [equity] cases, we consider the evidence de novo, but will not reverse a [trial court’s] findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996). We give due deference to the superior position of the [trial court] to view and judge the credibility of the witnesses. Noland v. Noland, 330 Ark. 660, 956 S.W.2d 173 (1997). This deference to the [trial court] is even greater in cases involving child custody, as a heavier burden is placed on the [trial court] to utilize to the fullest extent [its] powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. Anderson v. Anderson, 18 Ark.App. 284, 715 S.W.2d 218 (1986). Where the [trial court] fails to make findings of fact about a change in circumstances, this court, under its de novo review, may nonetheless conclude that there was sufficient evidence from which the [trial court] could have found a change in circumstances. Campbell v. Campbell, 336 Ark. 379, 985 S.W.2d 724 (1999); Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988).
Our law is well settled that the primary consideration in child-custody cases is the welfare and best interest of the children; all other considerations are secondary. Digby v. Digby, 263 Ark. 813, 567 S.W.2d 290 (1978). A judicial award of custody should not be modified unless it is shown that there are changed conditions that demonstrate that a modification of the decree is in the best interest of the child, or when there is a showing of facts affecting the best interest of the child that were either not presented to the [trial court] or were not known by the [trial court] at the time the original custody order was entered. Jones, 326 Ark. 481, 931 S.W.2d 767. Generally, courts impose more stringent standards for modifications in custody than they do for initial determinations of custody. Id.
(quoting from Hamilton v. Barrett, 337 Ark. 460, 465-66, 989 S.W.2d 520, 523 (1999)).
. Letter Opinion
Here, in its letter opinion, the trial court made its disgust for Christy’s conduct clear with comments such as:
1) “Doubtless, if the Court had been made aware of [Christy’s] lewd and shameless conduct, the custody would have been awarded to [Matt]. She was much more concerned with satisfying her sexual urges than taking care of, or being concerned with, the needs of the children. But that was then.”
142) “Almost without question, had the Court been aware of [ Christy’s] conduct, custody would have been awarded to [Matt].”
3) “But it is disheartening to hear a case, where the custodian is so lacking in moral character. She even seems oblivious to her neglect of her duty to lead a life that sets a good example for her children. She claims not to know the difference between a man who is divorced, and one who is still married. This man, whom she is serving as paramour in an explicitly adulterous relationship, is even under Court order to keep his child away from her. There are a number of cases teaching that sexual promiscuity is not countenanced or condoned, in a custody context.”
4) “Further, her breach of her fiduciary duty in tending to her father’s estate is likewise a serious blemish on her character. Moreover, her protestation of lack of understanding of the seriousness of her defalcation seems insincere and untruthful.”
5) “[T]he Court finds it was [Christy’s] affairs with other men that ruined the marriage.”
6) “And her unfaithfulness was startlingly debauched, including having sex with a former student, in daylight, in a car, in a public park.”
7) “For today’s decision, the Court must conclude that defendant has no respect for an important institution [marriage], and thus will not properly instruct the children with respect to that aspect of their rearing.”
Countering these adverse comments, the trial court also stated in its letter opinion:
|sl) “And why did the Court award custody to [Christy] ? At [ Matt’s] urging and petition. In fact, he never filed to change custody, until after [Christy] filed to increase the child support.”
2) “But the primary consideration of the decision, is always the children’s best interest. The record shows that the children are doing well in school, well adjusted and happy.”
.8) “The children seem to be doing well, as best the Court can divine on this record. The Court can’t help but be concerned of the adverse effect on the children witnessing their mother pandering to a married man — their next door neighbor. But the Court cannot find that, as of now, that has adversely affected them, or their view of proper conduct. It seems that a change of custody would be less attending to what’s best for the kids, and more a punishment for [Christy].”
The Sub-Points
1) No decrease in immoral behavior
For his first subpoint, Matt argues that the trial court improperly disregarded its own statements that it would have undoubtedly awarded primary custody to Matt if it had known of Christy’s conduct at the time the divorce decree was entered by simply commenting, “But that was then,” thereby implying that Christy’s behavior had improved. Appellant argues that the record shows her conduct continued, and therefore the trial court improperly disregarded that fact. The short answer to this subpoint is that the trial court clearly did not disregard Christy’s continuing conduct, and, in fact, went to great lengths in expressing its disapproval of her conduct, both pre- and post-divorce.
|⅛¾) Adverse impact on the children
For this subpoint, Matt contends that the trial court erred in placing a burden on him to prove the children had been adversely impacted by Christy’s behavior. Our review of the record convinces us that the trial court placed no such burden on Matt. The trial court merely said: “The Court can’t help but be concerned of the adverse effect on the children witnessing their mother pandering to a married man — their next door neighbor. But the Court cannot find that, as of now, that has adversely affected them, or their view of proper conduct.” The trial court was simply assessing whether there had been an adverse impact. It in no way placed a burden on Matt to prove such an impact. The trial court’s analysis was appropriate.
In Calhoun v. Calhoun, 84 Ark.App. 158, 162-63, 138 S.W.3d 689, 691-92 (2003), we explained:
The Arkansas Supreme Court has stated that “the primary consideration in child-custody cases is the welfare and best interest of the children; all other considerations are secondary.” Hamilton v. Barrett, 337 Ark. 460, 466, 989 S.W.2d 520, 523 (1999). Further, the court has stated that “[a] judicial award of custody should not be modified unless it is shown that there are changed conditions that demonstrate that a modification of the decree is in the best interest of the child, or when there is a showing of facts affecting the best interest of the child that were either not presented to the chancellor or were not known by the chancellor at the time the original custody order was entered.” Jones v. Jones, 326 Ark. 481, 491, 931 S.W.2d 767, 772 (1996). “[Cjhild custody is determined by what is in the best interests of the child, and it is not altered absent a material change in circumstances.” Id. at 487, 931 S.W.2d at 770. “The party seeking modification of the child-custody order has the burden of showing a material change in circumstances.” Id. at 491, 931 S.W.2d at 772. Further, “[f|or a trial court to change the custody of children, it must first determine that a material change in circumstances has transpired from the time of the divorce decree and, then, determine that a change in custody is in the best interest of the child.” Lewellyn v. Lewellyn, 351 Ark. 346, 355, 93 S.W.3d 681, 686 (2002).
|7We conclude appellant is correct in her assertion that the circuit court failed to consider the best interest of the minor child. After the court found that appellant had met her threshold burden of showing a material change in circumstances, the court then stated that appellant did not “show” that a modification would be in the best interest of the child, as she did not “show” that the child had suffered an “adverse impact” by reason of the changed circumstances. In doing so, the court failed to apply the two-step analysis described above and as set forth in Lewellyn. After the noncustodial parent has shown a material change in circumstances, rather than requiring the noncustodial parent to then show an adverse impact on the child, the court should weigh these material changes and consider the best interest of the child. Here, the court found there was a material change in circumstances but then placed an additional burden on appellant, that is, a showing of an “adverse impact” on the child, without simply weighing the child’s best interest.
We do not hold, however, that the circuit court should never consider whether there was adverse impact on the child when determining whether a material change in circumstances has occurred. In Taylor v. Taylor, 353 Ark. 69, 110 S.W.3d 731 (2003), the Arkansas Supreme Court addressed the issue of whether the noncustodial parent showed a material change in circumstances. In holding that the noncustodial parent’s evidence was insufficient to constitute a material change in circumstances, the court noted that the noncustodial parent “failed to demonstrate any actual harm or adverse effect.” Accordingly, in some instances it may be the adverse impact on a child that makes a change in circumstances “material.” This is also in keeping with Hollandsworth v. Knyzewski 353 Ark. 470, 109 S.W.3d 653 (2003). There, the Arkansas Supreme Court held that the custodial parent’s relocation no longer constituted a material change in circumstances, and there was a presumption in favor of relocation, with the noncustodial parent having to rebut the presumption. In that case, the court concluded that there was no material change in circumstances, noting that there was no evidence that the relocation would be detrimental to the children.
Moreover, we do not hold that in making a determination of the best interest of a child, the court cannot consider whether the material change in circumstances had an adverse impact on the child. See Lewellyn, supra (determining the best interest of a child by considering whether a material change in circumstances had a “negative emotional impact” on the child). We hold that once the noncustodial parent has established a material change in circumstances, the court is to weigh the best interest of the child to determine which parent shall serve as the custodian of the child.
(Emphasis added.)
IsHere, the trial court clearly considered the evidence of adulterous conduct to represent a material change of circumstances, or more precisely, material circumstances of which it had not been made aware at the time of the divorce. Then, in determining the best interests of the children, the trial court took those circumstances into account, along with whether those circumstances had an adverse impact on the children; the trial court decided that — despite the mother’s conduct — it was in the children’s best interest for Christy to retain primary custody. We find no error in his method of analysis.
3) Failure to presume that Christy’s illicit sexual conduct is detrimental to the children
Under this subpoint, Matt contends that once he established Christy had engaged in illicit sexual conduct, the “trial court was obligated ... to consider the actual and potential harm that Christy’s conduct posed to her children in determining whether continuing the custody arrangement was in the best interest of the children in view of the proof.” He further argues that the “trial court was required to presume that Christy’s illicit sexual behavior is harmful to the children, and, certainly, there was no evidence submitted that would be sufficient to rebut this presumption.”
Again, the trial court clearly did not approve of Christy’s conduct, but proof of that conduct alone did not require a change of custody. The trial court’s primary consideration was determining the best interests of the children, and, in making that determination, it did consider the potential harm that Christy’s conduct posed to her children. In the final analysis,_[t¡however, the trial court concluded that the children’s best interests were better served by leaving primary custody with Christy.
tí Incapable of instructing the children on the institution of marriage
For his next subpoint, Matt argues that the trial court’s finding that Christy was incapable of instructing the children on the institution of marriage alone justified a change of custody. Again, that was not the trial court’s conclusion, and Matt’s argument does not provide a convincing basis for reversal.
5) Punishing Matt for not disclosing Christy’s illicit sexual behavior at the time of the divorce
For his final subpoint, Matt contends that the trial court’s decision was based on a desire to punish Matt for not disclosing Christy’s conduct at the time of the divorce. There is simply no basis in the record to support this assertion.
II. The trial court erred in increasing Matt Valentine’s child-support obligations.
The trial court found that because of an increase in Matt’s reported income, there had been a substantial and material change in circumstances since the prior decree and that the amount of child support should be increased. In determining the appropriate amount of child support, the trial court explained:
For two children, the guidelines fix 21% as the presumptive correct amount (over the chart) which figures out as $14,343.00 monthly. The question arises, should the Court deviate from the chart amount? Defendant’s Exhibit # 86 reflects that she has a • net take home pay of $4,896.62 monthly. Her expenses for herself and the two children totals $6,500.00 a month, this would more than cover all defendant’s living expenses for herself and the children, and she would still have her monthly salary, after taxes, of $4,896.62. The monthly child support is not taxable to the defendant, and this |1(laward would seem to be the proper amount. For these reasons, the Court deviates downward from the chart, and orders $6,500.00 child support a month, retroactive back to when the petition to modify was filed, September 27, 2007.
Then, in determining the appropriate retroactive amount, the trial court credited Matt for the monthly child support that he had paid, against the $6,500 monthly amount newly awarded, resulting in a balance of $45,900.
The amount of child support lies within the sound discretion of the circuit court, and we will not reverse that amount absent an abuse of discretion. Hill v. Kelly, 368 Ark. 200, 243 S.W.3d 886 (2006). The circuit court is required to reference the child-support chart, and the amount specified in the chart is presumed to be reasonable. Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002); Ark.Code Ann. § 9-14-106 (Repl.2009). This statute creates a rebuttable presumption that the amount contained in the family-support chart is the correct amount of child support to be awarded. Ark.Code Ann. § 9-14-106(a)(1)(B).
Here, the trial court supported its deviations downward from the chart amount with written findings and did not abuse its discretion in doing so.
III. The trial court erred in awarding Christy Valentine attorney’s fees.
In its letter opinion, the trial court also explained:
The defendant has incurred attorney fees in [the] amount of $31,000.00. This fee seems reasonable and justified by the record, and the plaintiff is able to pay. The Court orders plaintiff to pay defendant $31,000.00 as attorney fee. Jones v. Jones, 327 Ark. 195, 938 S.W.2d 228 (1997). (Attorney fee allowed in child-custody modification context).
Appellant does not challenge the amount of attorney’s fees; rather, he simply challenges the trial court’s decision to make him pay it. His argument is based primarily upon his | nassertion that Christy had “the financial means to pay for all, if not at least some portion, of her own attorney fees.”
In Jones v. Jones, 327 Ark. 195, 198, 938 S.W.2d 228, 229 (1997), our supreme court explained:
We find ample authority permitting an award of attorney’s fees in cases involving the modification of a custody decree. A court enjoys inherent authority to award attorney’s fees in such cases. Moreover, Ark.Code Ann. § 9-12-309(a) (Repl.1993), which authorizes the award of attorney’s fees in divorce actions, has been construed as permitting the award of attorney’s fees in child-custody modification actions, as the latter necessarily derive or continue from the former.
(Internal citations omitted.) Whether to allow such fees and in what amounts are matters within the trial court’s discretion. Schwarz v. Moody, 55 Ark.App. 6, 928 S.W.2d 800 (1996). In the absence of a clear abuse of discretion in fixing such a fee, we will not disturb the trial court’s decision on appeal. Id. We find no abuse of discretion in the trial court’s award of attorney’s fees in this case.
Affirmed.
GLADWIN and KINARD, JJ., agree. | [
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KAREN R. BAKER, Judge.
hOn August 28, 2009, a jury in Hempstead County convicted appellant Willious Block of robbery, two counts of breaking or entering, misdemeanor battery, and misdemeanor theft of property. He was sentenced to twenty-seven years and six months’ imprisonment at the Arkansas Department of Correction. On appeal, he argues that the trial court erred in denying his motion to dismiss for lack of a speedy-trial. The appellate courts conduct a de novo review to determine whether specific periods of time are excludable under our speedy |2trial rules. Yarbrough v. State, 370 Ark. 31, 257 S.W.3d 50 (2007); Cherry v. State, 347 Ark. 606, 66 S.W.3d 605 (2002). We affirm.
The right to a speedy trial is articulated in the Bill of Rights, U.S. Const. Amend. 6, and guaranteed to state criminal defendants by the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). Pursuant to Arkansas Rule of Criminal Procedure 28.1(b), the State is required to bring a defendant to trial within twelve months, excluding any periods of delay authorized by Arkansas Rule of Criminal Procedure 28.3. Romes v. State, 356 Ark. 26, 144 S.W.3d 750 (2004); Moody v. Arkansas County Circuit Court, 350 Ark. 176, 85 S.W.3d 534 (2002). If a defendant is not brought to trial within the requisite time, Arkansas Rule of Criminal Procedure 30.1 provides that the defendant will be discharged, and such discharge is an absolute bar to prosecution of the same offense and any other offense required to be joined with that offense. Id. Appellant was arrested on November 28, 2007, and should have been brought to trial by November 28, 2008, if there were no excluda-ble periods under Rule 28.3. Because the trial did not occur until 639 days later, on August 28, 2009, appellant made a prima facie case that his right to a speedy trial was violated; therefore, the burden was on the State to show that the delay was the result of appellant’s conduct or was otherwise justified. State v. Crawford, 373 Ark. 95, 281 S.W.3d 736 (2008); Miles v. State, 348 Ark. 544, 75 S.W.3d 677 (2002).
There are three undisputed speedy-trial time periods within this appeal. The first time period chargeable to the State is the 90 days from appellant’s time of arrest until the order for 13the mental health evaluation (“MHE”) on February 26, 2008. The second time period concerns when the MHE stopped tolling the speedy-trial time period. The trial court determined that the MHE was completed, on June 16, 2008. Appellant does not dispute that 97 of those days are properly chargeable to him. The third time period is 163 days of ex-cludable time attributable to appellant. At a hearing on March 18, 2009, appellant requested a continuance from the circuit court to appoint a new public defender. He clearly stated that he was waiving his speedy trial right as to that time period. On April 17, 2009, appellant’s new counsel, his third attorney, requested a continuance. The trial court granted this request, and a new date was set for August 24, 2009, but the trial did not start until August 28, 2009.
June 2, 2008 to August 11, 2008 (70 days)
The time necessary to complete the MHE ordered by the trial court pursuant to ArkjCode4 Ann. § 5-2-305 (Repl.2006) shall be excluded from the one-year period for speedy trial. See Ark. R.Crim. P. 28.3(a). Rule 28.3(a) specifically states that the excludable period of delay includes, but is not limited to, an examination and hearing on the competency of the defendant. On February 26, 2008, an order for the MHE was entered by the trial court. On May 22, 2008, the docket entry showed that the MHE was complete. Ad ditionally, on June 2, 2008, it stated “MHE has been completed but no report” and there was an entry setting a new trial date. The MHE report, on its first page, stated that it was submitted on June 16, 2008. The trial court held that the MHE was completed on June 16, 2008. The MHE report was entered as an exhibit at a hearing on August 13, 2009, wherein the trial court found that “they submitted their report ... on June 16, 2008, and there is no excludable period between February 26, 2008, until today’s date as a result of the docket entries that have been reviewed by this court.” The written order denying the motion to dismiss for speedy trial violation, nor the docket entries, furnish illumination for the court’s extension of ex-cludable time beyond the submitted date of the MHE.
Appellant focuses this court on the fact that the MHE report was not filed. The filing requirement can be found in Ark. Code Ann. § 5-2-305© (Repl.2006):
(1) A person designated to perform a forensic examination shall file the report of the forensic examination with the clerk of the court, and the clerk of the court shall mail a copy to the defense attorney and a copy to the prosecuting attorney.
(2) Upon entry of an order by the circuit court, a copy of the report of the forensic examination concerning a defendant shall be provided to the circuit court by the person designated to perform the forensic examination.
1 ¡Appellant argues that the setting of a new trial date by the circuit court proved that the MHE was completed on June 2, 2008. Thus, he argues that is the date the tolling should have ended. Appellant relies upon Hufford v. State, 314 Ark. 181, 184, 861 S.W.2d 108, 109 (1993), and Mack v. State, 321 Ark. 547, 905 S.W.2d 842 (1995). Both of those cases, however, simply state that the delay caused by a mental examination is excluded. They did not discuss how to determine the completion date of the MHE when the report is not filed. That was addressed in Davis v. State, 375 Ark. 368, 373, 291 S.W.3d. 164, 168 (2009), where the court said “[bjecause the report could not have been filed prior to its mailing, we accept the cover letter date ... as the last date of exclusion attributable to Davis on the mental evaluation.”
In this case there is no transmittal letter with the MHE report; however, on the first page, it stated that the examination was conducted on May 13, 2008, and that it was submitted on June 16, 2008. Pursuant to Davis, the last day of exclusion attributable to appellant is June 16, 2008. Therefore, 14 days from June 2, 2008, to June 16, 2008, are chargeable to appellant, and the 56 days from June 16, 2008, to August 11, 2008, are attributable to the State.
August 11, 2008 to March 18, 2009 (219 days)
Appellant argues that two motions for continuance constituting 219 days filed by Billy Moritz were ineffective to toll speedy trial as he was not appellant’s counsel of record and had no authority to act on his behalf. Specifically, appellant contends that Danny Rodgers, the | ñfírst attorney who represented him, did not follow the proper procedure to withdraw as his attorney. He further argues that once Mr. Rodgers was appointed as his counsel by the court, only the court could have relieved him or substituted another attorney. Additionally, he espouses that Rule 64(b) of the Arkansas Rules of Civil Procedure was not followed, which would have prevented prejudice to him.
A defendant’s right to counsel of choice is grounded in the Sixth Amendment to the United States Constitution, and also guaranteed by article 2, section 10 of the Arkansas Constitution. Wormley v. State, 2010 Ark. App. 474, 375 S.W.3d 726. While constitutionally guaranteed, the right to counsel of one’s own choice is not absolute and may not be used to frustrate the inherent power of the court to command an orderly, efficient, and effective administration of justice. Bullock v. State, 353 Ark. 577, 111 S.W.3d 380 (2003). Also, the- Sixth Amendment does not guarantee that a criminal defendant will be represented by the lawyer whom he prefers. See Morris v. Slappy, 461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983).
The record reveals that at his first appearance, the public defender’s office, not a specific attorney, was appointed to represent appellant. On August 5, 2008, Mr. Rodgers, managing public defender, filed notice that the case had been reassigned to Billy Moritz, another public defender, due to an ethical conflict of interest. In that notice, the certificate of service stated that a copy was sent to appellant. On August 11, 2008, Mr. Moritz filed a motion for continuance stating that the speedy trial requirement was waived. The order granting a new trial date of December 1, 2008, reflected that the speedy-trial time had been [ 7tolled. Mr. Moritz filed' another motion for continuance asserting again that the speedy-trial rule was waived. The trial court granted the motion on November 24, 2008, setting a new trial date for March 23, 2009, and again said that the speedy trial rule was tolled.
The United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) held that the constitutional right to a speedy trial, like any other fundamental constitutional right, may be waived. In Eubanks v. Humphrey, 334 Ark. 21, 972 S.W.2d 234 (1998), the Arkansas Supreme Court held that a waiver was effective by a criminal defendant to his right to a speedy trial as it was made within the twelve-month period, taking into account any excludable periods. There is no question here that the waivers were made- within the speedy-trial time. Appellant is bound by the acts of his attorney. See Lovelace v. Director, Employment Sec. Dep’t, 78 Ark.App. 127, 79 S.W.3d 400 (2002)(client bound by even the negligent acts of his attorney).
Appellant’s argument regarding the appointment of Mr. Moritz is not supported in the record. The record of the first judicial appearance showed that the “public defender’s office” was appointed and that such was explained to appellant. This was hand written in a blank space on a form document that appellant signed, attesting to his understanding that the public defender’s office was appointed. On February 19, 2009, the docket entry reflected that the trial judge released the public defender’s office pursuant to appellant’s request to act pro se. On March 13, 2009, the docket sheet stated that appellant was present and he declined the attorney that had been appointed. Additionally, the entry showed “Mr. Moritz ordered to [sbe standby to answer any Qs.” On March 18, 2009, the entry showed that appellant was granted counsel at his request. Specifically, the record stated that the public defender commission was to appoint counsel for appellant. At the actual hearing, the trial court carefully explained to appellant that he was not appointing him a specific attorney, but rather was going to allow the public defender commission to decide who would represent him. Appellant acknowledged this several times in open court. Therefore, appellant’s argument that Mr. Moritz was never his appointed attorney has no merit.
Additionally, appellant argues that Rule 64 of the Arkansas Rules of Civil Procedure was not followed by Mr. Rodg ers in withdrawing from representing him; yet, appellant does not demonstrate how that impacts his right to a speedy trial. We will not reach the merits of an argument on appeal, even a constitutional one, when the appellant presents no citation to authority or convincing argument in its support, and it is not apparent without further research that the argument is well taken. Harrison v. State, 371 Ark. 652, 269 S.W.3d 321 (2007); Williams v. State, 363 Ark. 395, 214 S.W.3d 829 (2005).
In sum, of the total 289 days challenged in this appeal, 56 days are chargeable to the State and 233 days are attributable to appellant. Of the 639 days from the date of arrest to the date of trial, 493 days are excludable and attributable to appellant. Because only 146 days are chargeable to the State, the trial court did not err in denying appellant’s motion to dismiss for lack of speedy trial.
Affirmed.
GRUBER and HENRY, JJ., agree.
. We note that the judgment and commitment order contained in the addendum is the amended judgment and commitment order filed on October 6, 2009. Although appellant’s notice of appeal references the original judgment, the notice is not defective because there is no change in the amended judgment, and because appellant filed his notice of appeal in a timely manner based on the date of the filing of the original judgment.
. Appellant fleetingly advances that no amount of time for the MHE should be chargeable to him as the report was never filed; however, he explicitly states that June 2, 2008 is the correct date the MHE was completed for speedy-trial purposes. Appellate courts will not address arguments not fully developed, Walters v. Dobbins, 2010 Ark. 260, 370 S.W.3d 209, and we decline to do so here.
. The record reflects that while the continuance was granted until August 24, 2009, the trial occurred on August 28, 2009. The record also reflects that appellant’s counsel requested a change in the scheduled trial date to accommodate his schedule, thus, the computation is based upon the actual trial date. As these days are not challenged, it is not necessary to further analyze them.
.The time periods are determined based upon the nature of appellant's challenges. He disputes two time periods 1) the completion date of his MHE and 2) the continuances requested by his second attorney. | [
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LARRY D. VAUGHT, Chief Judge.
|,Appellant Michael Main appeals a decision of the Arkansas Workers’ Compensation Commission finding that he was not entitled to an additional anatomical-impairment rating pursuant to Ark.Code Ann. § 11-9-521 (Repl.2002). He also claims that the Commission erred in its decision to allow his employer an offset for an advanced payment of compensation as defined by Ark.Code Ann. § 11-9-807 (Repl. 2002). We affirm in part and reverse in part.
Main, who was born on October 28,1968, has a high-school education. For approximately eighteen years, he worked for McGehee Metals. His jobs ranged from operating heavy equipment and ordering and selling parts to performing mechanic work. On September 19, 2005, Main was shot during a robbery with a sawed-off shotgun armed with three-inch, magnum-steel shot. He sustained injuries to his left arm and torso (chest, liver, |2and intestinal track), resulting in a prolonged hospitalization, numerous surgeries, post-traumatic-stress syndrome, and depression with psychotic (hallucinations) features. Dr. Charles Mabry treated Main’s chest and abdomen, and Dr. John Lytle treated Main’s left elbow. Main also received counseling at Southeast Arkansas Behavo-rial Healthcare from Drs. Sizemore, Wooten, and Malik.
On August 24, 2007, Dr. Lytle assessed an eighty-eight percent impairment rating to Main’s left arm based on nerve dysfunction, loss of the elbow joint, and loss of hand strength. In his report, Dr. Lytle stated that Main had reached maximum medical improvement and further stated:
I have recommended to Mr. Main that he have further surgery to stabilize his left elbow.... He has restricted lifting of any weight with his left arm. He has no functional use of the left arm or hand.... I have recommended effusion of the left elbow. According to the ‘Guides to the Evaluation of Permanent Impairment,’ Fourth Edition, as published by the American Medical Association, I see his permanent impairment to the left arm to be a combination of the nerve dysfunction from the complete transsection of the ulnar nerve above the elbow with injuries to the radial nerve, combined with the loss of the elbow joint from massive trauma from gunshot wound, and the loss of strength in his hand. The impairment due to the loss of motor and sensory function of the ulnar nerve above mid forearm is 50 percent to the upper extremity. This is rated according to table 15 page 54. The impairment due to the loss of the elbow joint is 70 percent to the upper extremity and 42 percent to the person as a whole according to table 18 page 58. The impairment due to the loss of strength is computed to be a 45 percent strength index loss. According to table 34 page 65 is a 20 percent upper extremity impairment. Using the combined value table on page 324 for each of these numbers this is equivalent to 88 percent to the upper extremity. Using table three page 20. This is then equivalent to 53 percent to the person as a whole. I have recommended to Mr. Main that he consider an arthrodesis of the elbow.
|3I do not expect that this would alter his permanent impairment however certainly it would make his daily life more functional.
According to Dr. Lytle’s December 25, 2008 report
Michael Main sustained a massive extraordinary wound to his [left] arm. He has complete loss of function of the ulnar nerve and an unstable elbow joint. He can move his index finger, long finger and thumb with limited amount of grip. This is not very functional. I would say that his use of the arm is only slightly better than an amputation. You have previously reviewed the permanent impairment rating and I feel that this is accurate.
Main’s psychiatric records mention an incident where he was involved in a motor-vehicle accident after the robbery (in 2006) and sought chiropractic care. Two medical reports (and Main’s own testimony) stated that Main’s mental stress was exemplified by his reaction to a back-firing vehicle. Dr. Wooten’s report of August 27, 2007, states that Main cannot work and is unemployable. Main also testified that his left hand remains cold at all times and that he developed post-traumatic-stress disorder (PTSD) as a result of the attack. He further stated that he is unable to work based on the cumulative effect of the PTSD, the side effects of medication, and his physical limitations.
On September 18, 2007, Main signed a ' Form AR-C, Claim For Compensation. He contended that he was entitled to additional benefits, including additional temporary total and temporary partial, additional permanent partial, additional medical expenses, rehabilitation, attorney’s fees, child support, and “other.” In fact, Main, who has no legal training and was unrepresented at the time, placed a check in every box.
The owner of McGehee Metals, Edward McGehee, is an eighty-two-year-old man |4who has been in the metal business for several decades. He testified that he was unaware of changes in the law concerning the requisite number of employees needed to trigger mandatory workers’ compensation insurance. However, after this incident, he consulted an attorney and has remedied the situation by acquiring workers’ compensation insurance for his employees.
Specifically, at the February 20, 2009 hearing, Edward McGehee was questioned by his attorney:
Q. Did you have any kind of insurance on your business before Mr. Main’s situation?
A. No....
Q. When he was hurt, did you realize you owed him some worker’s (sic) compensation benefits?
A. Yeah, I knew I was going to have to pay worker’s (sic) comp sooner or later.
Q. Okay. And did you pay for Mr. Main’s [sic] medical bills?
A. Paid all his medical bills, hospital and everything.
Q. Do you have any idea how much you have paid on medical bills?
A. It’s been over five hundred thousand dollars or more.... That’s counting the wages and everything.
Q. Okay. Alright. Now you paid Mr. Main, you continued paying him his salary and that was four hundred and eighty dollars a week, is that right?
A. Yes sir.
UQ. [All right.] Did you consider that to be a gift to Mr. Main?
A. No, I didn’t consider it a gift, I figured I was going to have to pay it sooner or later through workman’s comp.
Q. Okay, did you understand that under workman’s comp, you might have to pay him less than four hundred and eighty dollars a week?
A. Well, I didn’t at first, I figured he needed the money and his wife was sick too, so that’s why I paid it for a long time. Until they told me different....
Q. Did you know whether or not it was more than four hundred eighty dollars a week or less than that four hundred and eighty dollars a week?
A. Less.
Q. And after you learned that it was less, did you continue to pay him four hundred and eighty dollars a week?
A. For a while I did.
Q. Why did you do that?
A. Well, his wife had cancer and I thought I’d help him a little bit....
Q. Okay, so was the difference in what you owed him and what you were paying him, was that a gift for Mr. Main?
A. No, it wasn’t a gift.
Q. What was it, what did you think it was?
A. I thought I was getting ahead a little on the worker’s [sic] comp....
Then, Edward McGehee was cross-examined by Main’s attorney:
Q. Did you ever tell him that this money you were paying him was an advance payment of compensation?
|fiA- No sir.
In sum, McGehee testified he had paid Main’s medical expenses and continued his salary because he knew that he would have to pay workers’ compensation “sooner or later.” However, McGehee also testified he was trying to help Main financially because Main’s wife was suffering from cancer. Of particular note is the fact that McGehee continued to pay Main’s full salary for a time after he found out he owed only 66 2/3% of Main’s average weekly wage. Furthermore, Main testified that there ■ was never any discussion of “advanced payments of compensation.” McGehee confirmed Main’s testimony on this topic. Main stated that he knew McGehee did not have insurance and thought McGehee was continuing to pay the full-salary amount to keep from getting in trouble with the law. Finally, McGehee also testified that he approached Main about returning to work but Main declined his offer of light duty. Main claimed that he had no use of his left arm and that his mental health — specifically the PTSD — prevented him from returning to work. McGehee responded that he observed Main splitting wood and using his left hand to steady the wood. Main denied this accusation.
For his first point on appeal, Main contends that the employer is not entitled to a credit for the salary paid because there was no agreement that he was receiving an advance payment of compensation. Main received his full salary ($480 weekly) until the end of 2007. On |7January 1, 2008, McGehee Metals changed the payments to $213 a week. On December 20, 2008, the rate was adjusted to $240, and payments continued until February 20, 2009. McGe-hee later conceded that the correct compensation rate was $240. However, it declined to pay attorney’s fees on the error or make up the difference of $27 weekly. The employer took the position that it had already overpaid the claim. According to Ark.Code Ann. § 11-9-807,
(a) If the employer has made advance payments for compensation, the employer shall be entitled to be reimbursed out of any unpaid installment or installments of compensation due.
(b) If the injured employee receives full wages during disability, he or she shall not be entitled to compensation during the period.
Case law makes a distinction between “advance payments of compensation” and payment of “benefits, wages and gratuities.” Southwestern Bell Tel. Co. v. Siegler, 240 Ark. 132, 398 S.W.2d 531 (1966). These cases usually involve payments from third parties (group insurance, disability plans) that result in benefits that exceed a salary. Act 796 of 1993 addressed this issue in the offset provisions outlined in Ark.Code Ann. § 11-9-411. The amount in excess of wages paid over the weekly compensation rate cannot be credited against an award of future benefits unless both parties intended that the payments be compensation in advance. Looney v. Sears Roebuck, 236 Ark. 868, 371 S.W.2d 6 (1963) (emphasis added); Varnell v. Union Carbide, 29 Ark.App. 185, 779 S.W.2d 542 (1989).
In this case, the ALJ relied on these cases and concluded that the “employer’s reasons |sfor continuing the claimant’s salary involved some gratuity as he was trying to help the claimant’s family not only because of the claimant’s severe injuries but also because of his wife’s illness.” But the Commission reversed that decision. The Commission noted Main’s position that McGehee never mentioned the phrase “advance payment of compensation to him,” but still concluded that “both parties knew Edward McGehee was making voluntary advance payments of reasonably necessary medical treatment and indemnity benefits to the claimant.” The Commission then ordered that McGehee be allowed an offset for the overpayments.
For reversal, Main relies on Vamell, which holds:
When an employer continues to pay salary or wages to an injured employee during any time of injury, and such payments are in excess of workmen’s compensation benefits, then when a workmen’s compensation award is subsequently made, the excess of the wages paid over the weekly compensation award cannot be deducted from the award. The policy of employers to pay an injured employee the prevailing wage scale while inactive during an injury period is in line with the modern concepts of employer-employee relations and. is to be encouraged, but the employer cannot make such payments and later claim credit for the excess as against an award made.
Varnell, 29 Ark.App. at 191, 779 S.W.2d at 546.
In this case, there is no showing that both parties intended for the salary paid to be advance payment of compensation. In fact, McGehee unequivocally testified that he never informed Main that the money he was being paid was an advance payment of compensation. To find otherwise requires conjecture and speculation, neither of which are permitted in this analysis. Simply put, in order to receive an offset, McGehee had the burden to show that both parties intended that the payment be an advance payment of workers’ compensation. The 19record before us shows no such proof. As such, we reverse the Commission on this point because its decision is not supported by substantial evidence.
Next, Main contends that because he has no functional use of his injured arm and hand the Commission’s finding that he is entitled to only an eighty-eight-percent impairment rating is not supported by substantial evidence. “Permanent impairment” has been defined as any permanent functional or anatomical loss remaining after the healing period has ended. Johnson v. General Dynamics, 46 Ark.App. 188, 878 S.W.2d 411 (1994). Any determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings. Ark.Code Ann. § 11 — 9— 704(e)(1)(B).
The Commission has adopted the Guides to the Evaluation of Permanent Impairment (4th ed. 1993), published by the American Medical Association for the assessment of anatomical impairment. Ark.Code Ann. § ll-9-521(h); Workers’ Compensation Laws and Rules, Rule 099.3L The Commission is authorized to decide which portions of the medical evidence to credit and to translate this medical evidence into a finding of permanent impairment using the AMA Guides. Avaya v. Bryant, 82 Ark.App. 273, 105 S.W.3d 811 (2003) (citing Polk County v. Jones, 74 Ark.App. 159, 47 S.W.3d 904 (2001)). The Commission may assess its own impairment rating rather than rely solely on its determination of the validity of ratings assigned by physicians. Id.
Here, the ALJ found that Main had no functional use of his arm and awarded him | madditional benefits. The Commission reversed. In its reversal, the Commission relied on Dr. Lytle’s August 24, 2007 report assigning Main an eighty-eight-percent impairment rating pursuant to the AMA Guides. The Commission specifically noted that Dr. Lytle opined that Main had restricted lifting with his left hand and, in a later report, noted that Main could move his index finger, long finger, and thumb with some limited grip. The Commission also relied on Main’s own words that he did have some functional use of his left arm. Based on this evidence, the Commission found that Main had not suffered “permanent total loss of use of a member” in accordance with Ark.Code Ann. § 11-9-521 (e). Because the Commission has the authority to determine permanent impairment, Pollard v. Meridian Aggregates, 88 Ark.App. 1, 193 S.W.3d 738 (2004), and there is substantial evidence to support its finding, we affirm on this point.
Reversed in part; affirmed in part.
PITTMAN and HART, JJ., agree.
. There is no dispute that on September 19, 2005, an employee-employer relationship existed between Main and McGehee Metals. Furthermore, the parties agreed that on this date he sustained a compensable injury at compensation rates of $320/$240. McGehee Metals also accepted responsibility for medical expenses and an eighty-eight percent impairment rating to Main's left arm, as assessed by Dr. Lytle (at the end of the healing period on August 24, 2007).
. Sanctions can be assessed against employers who fail to obtain workers’ compensation coverage. Ark.Code Ann. § 11-9-401, § 11-9-406.
. McGehee Metals obtained a release from Dr. Lytle but not from the mental-health clinic.
. This claim is based on the opinion tendered in Dr. Lytle’s report of August 24, 2007. | [
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RITA W. GRUBER, Judge.
11 Billy R. Washington was arrested for possession of cocaine with intent to distribute on October 27, 2008, during a police investigation of a road-rage incident at a Hot Springs gas station. He was convicted in a jury trial and was sentenced to twenty years’ imprisonment. He appeals the conviction, contending that the circuit court erred 1) by failing to grant his motion for a directed verdict; 2) by denying his request to present a particular witness in his defense; and 3) by allowing drug evidence over his chain-of-custody objection. We affirm.
The State’s witnesses included Corporal Sonya Luzader of the Hot Springs Police Department, Chris Chapmond of the Hot Springs Police Department and the 18th East Drug Task Force, and chemist Nick Dawson of the state crime laboratory. Witnesses for the defense included Tammy Williams, Corporal Paul Calcagno, and Washington.
| ^Luzader testified to the pertinent events of October 27, 2008, which began while she was having lunch at a McDonald’s and diners said there was about to be a fight across the street. Luzader observed a man in a car, flailing his arms and pointing at another motorist. She drove across Central Avenue and made contact with Washington as he walked from a Valero station to the car, which had parked at a gas pump. He insisted to her that there was no problem, but she ran his name through dispatch and learned that there was a valid warrant against him. She told him she was taking him into custody.
Luzader told Corporal Calcagno, who had arrived as her backup, to watch Washington while she waited for confirmation of the warrant. Washington was near the rear of his car when the return from dispatch came, “kind of meandering, pacing, nervous,” as if “he didn’t want to deal with the police that day.” When Luzader attempted to see what was inside Washington’s car, he turned and meandered toward a trash can.
Luzader further testified:
He turned to the right and I saw a glimpse of something in his hand coming from the area of his waist ... and he did kind of a dumping swirl motion. I couldn’t tell what was in his hand when he made that motion, except [it] was something that was a light-colored object of some kind, and then I heard it fall in the trash ... like dropping a few papers in the trash can. I screamed Calcagno’s first name, ... and he went and took hold of Washington. I flew around the front of the car.... And sure enough in the trash can when I looked in there, I knew there was going to be something in there that he shouldn’t have had, and sure enough it just happened to be crack cocaine.
Luzader told Washington she had seen him drop the object in the trash can. He argued with her, and Calcagno handcuffed him in a team effort.
IsDuring a search subsequent to Washington’s arrest, a large amount of cash was found in Washington’s pants pocket. Lu-zader transported him to the sheriffs office, and she notified the drug task force because of the large quantity of drugs and money in the case. Sergeant Chris Chap-mond and another agent came in response.
Luzader identified State’s Exhibit 1 as the cocaine she had found lying on top of other trash in the can. She stated that it was in substantially the same condition as when she had found it in a baggie and that it apparently had been packed in another bag by the drug task force. Under cross-examination she emphasized that she “saw everything” herself.
Corporal Calcagno testified that he followed Washington to the trash can when he threw away a cup. Washington moved faster than Calcagno expected, throwing the cup with his left hand and “hovering,” his back turned and his right hand out of sight. Calcagno had no doubt that the cocaine was in the can before Luzader retrieved it.
Sergeant Chapmond identified Exhibit 1 by case number, labeling, and his own handwriting as the item Luzader had given him at the sheriffs office the same day. He testified that he “placed the plastic bag with the crack cocaine in the small envelope, and it was placed in this larger envelope” to be sent to the state crime lab for testing and weighing. He said that a property officer with the drug task force “delivers this to the crime lab, where it’s turned over to a chemist.” The cocaine’s weight before being sent to the crime lab was 28 to 29 grams, which Chapmond said had a street value of $2800 to $3000 in Hot Springs.
Chapmond also received $2084 in $1, $20, and $100 bills that Luzader had taken from Washington. Chapmond testified that these denominations, particularly the twenties and |4hundreds, were common in street-level sales. Washington objected when Chapmond was asked what his training and experience showed him about finding cash of such denominations and quantity “in conjunction with suspected narcotics,” arguing that he could not be asked about a person’s “$100 and $20 bills, that’s involving drugs.” The objection was overruled. Chapmond reiterated that those denominations indicated narcotic sales within the community and that standard practice was to seize the money and place it in a secure account, not to test it for substances.
Nick Dawson testified that he tested Exhibit 1 at the state crime lab and that Exhibit 2 was his results sheet. He stated that the exhibits’ case and agency numbers “matched up” and that the outside packaging, bearing his initials and the date he resealed it, matched the date and case number of the inner packaging. He was certain that Exhibit 1 was the substance he had tested, 28.2695 grams containing cocaine. The prosecutor moved to introduce Exhibits 1 and 2 into evidence, and Washington objected, arguing that the State had not established “a chain — connection — from the time it [was] taken at arrest through the point that Dawson as the state chemist ‘did it.’ ” The court sustained the objection, and the State asked the court to reconsider because the item was unique. Washington also objected that the State’s failure to introduce the drug task force’s property inventory form, which listed items Luzader took from Washington, showed that she “filed it off’ to Chapmond and constituted a break in the chain of custody. The court overruled the objection, citing testimony that Luza-der had given the evidence to Chapmond, who sent it to the crime lab after placing it in a bag and envelope.
|,.¡Dawson explained that the drugs were submitted in the large outer envelope, State’s Exhibit 4, which he had obtained from the evidence section; inside it was a smaller envelope, Exhibit 3; “inside that was the smaller of the two plastic bags ... that contain the drugs”; and that he had received the drugs and smaller plastic bag. Washington continued to raise chain-of-eustody objections, alleging a break between Luzader and Chapmond. The court overruled Washington’s continuing objections to the smaller and larger envelopes. Exhibitsl-4 were admitted into evidence.
Tammy Williams, the cashier and assistant manager of the Valero store, testified in the case for the defense that she saw the entire transaction involving Washington’s arrest and said that Washington, with a glass of ice in one hand and canned soda and chips in the other, put nothing in the trash from the time he left the store until his arrest. She admitted that Washington’s back was to her and she did not really know what went on in front of him.
At this point in the trial, Washington announced he was calling attorney Josh Hurst as a rebuttal witness. The State objected because Washington had not disclosed him as a witness. Washington replied that the testimony would rebut the State’s inference that the $2084 was drug money and that the State had not qualified Chapmond as an expert. Washington asked that Hurst be allowed to testify that Washington was attempting to fight the money’s confiscation and be allowed to identify an insurance-settlement check payable to Washington, which would reflect that the $2084 had nothing to do with drugs. He admitted he had known that Chapmond would be a witness, that there was a seizure and forfeiture, and that the State had to prove possession with intent to deliver.
|ñThe court ruled that Hurst was not a rebuttal witness and excluded his testimony because Washington had not disclosed him as a witness at the beginning of trial. Washington was allowed to proffer Hurst’s testimony and the purported, handwritten insurance check in the amount of $4715.89. Washington said that Hurst’s proffered testimony would be that Washington retained him to retrieve the seized $2084, that Hurst asked Washington to gather information explaining how he got the money, and that Hurst had a copy of the face of Southern Farm Bureau’s check to Washington.
Motion for Directed Verdict
Washington’s first point on appeal is that the evidence was insufficient to support the conviction. He points to his motions for a directed verdict at the close of the State’s case and at the conclusion of all the evidence, which were denied by the trial court. The grounds of his first motion were that the State had not “met its chain of custody,” the State had “not proven its case” because there was “no evidence or testimony of the charge ... as being crack cocaine,” and the testimony of the State’s witnesses “did not rise to the level of a scintilla.” Washington renewed the motion at the conclusion of all the evidence and asked the court “to revisit the issue of chain of command or chain of evidence ... because there just simply is no evidence about the cocaine.”
A motion for directed verdict is a challenge to the sufficiency of the evidence. Tryon v. State, 371 Ark. 25, 263 S.W.3d 475 (2007). A directed-verdict motion must clearly and specifically state an issue to the circuit court in order to preserve it for appeal. Phillips v. State, 361 Ark. 1, 203 S.W.3d 630 (2005); Meadows v. State, 358 Ark. 396, 191 S.W.3d 527 (2004). Here, as in Phillips and Meadows, Washington’s motions for directed verdict did not clearly and specifically enunciate the proof that was missing regarding the criminal offense. Thus, his sufficiency issue is not preserved for appellate review.
Rebuttal Witness
As his second point on appeal, Washington contends that the trial court erred by denying his request to present witness Josh Hurst as a rebuttal witness. The State objected to allowing this witness to testify. The trial court upheld the State’s objection, ruling that the request came during the case-in-chief for the defense, not rebuttal or surrebuttal, and that Washington had not complied with discovery rules that he disclose the witness. He argues on appeal that the State had not advised him that Chapmond would be offered as an expert witness to conclude that large amounts of drugs and money found on a suspect signal drug trafficking.
Discovery in criminal cases is a two-way street that promotes fairness by allowing both sides opportunity for full pretrial preparation, preventing surprise at trial, and avoiding unnecessary delays during the trial. Mitchell v. State, 306 Ark. 464, 816 S.W.2d 566 (1991). Under Rule 18.3 of the Arkansas Rules of Criminal Procedure,
Subject to constitutional limitations, the prosecuting attorney shall, upon request, be informed as soon as practicable before trial of the nature of any defense which defense counsel intends to use at trial and the names and addresses of persons whom defense counsel intends to call as witnesses in support thereof.
| sMatters pertaining to the admissibility of evidence are left to the sound discretion of the circuit court. McEwing v. State, 366 Ark. 456, 237 S.W.3d 43 (2006). The appellate court will not reverse such a ruling absent an abuse of that discretion; nor will the court’s ruling be reversed absent a showing of prejudice, as prejudice is not presumed. Id.
Here, the trial court excluded Hurst’s testimony because Washington failed to comply with the rules of discovery. Washington was fully on notice of the need for testimony about money from his purported insurance settlement, and he offered no further reason for his failure to disclose Hurst as a witness. The trial court was well within its discretion to preclude Hurst from testifying.
Chain of Custody
Washington’s third point on appeal is that the trial court erred by allowing drug evidence over his chain-of-custody objection. The purpose of establishing a chain of custody is to prevent the introduction of evidence that is not authentic or that has been tampered with. Guydon v. State, 344 Ark. 251, 39 S.W.3d 767 (2001). To prove authenticity of evidence the State must demonstrate a reasonable probability that the evidence has not been altered in any significant manner. Id. It is not necessary that every moment from the time evidence comes into the possession of a law enforcement agency until it is intro duced at trial be accounted for by every person who could have conceivably come in contact with the evidence during that period. Id. Nor is it necessary that every possibility of tampering be eliminated; it is only necessary that the trial court in its discretion be satisfied that the evidence ^presented is genuine and, in reasonable probability, has not been tampered with. Id. Absent an abuse of discretion, a ruling on an evidentiary matter regarding the admissibility of evidence will not be reversed because such matters are left to the sound discretion of the trial court. Id.
Minor uncertainties in the proof of chain of custody are matters to be argued by counsel and weighed by the jury, but they do not render the evidence inadmissible as a matter of law. Green v. State, 365 Ark. 478, 281 S.W.3d 638 (2006). Proof of chain of custody for interchangeable items like drugs or blood needs to be more conclusive than for other items of evidence. Crisco v. State, 328 Ark. 388, 943 S.W.2d 582 (1997). Nevertheless, the mere possibility of access to the item, where there is no evidence of tampering, is not enough to render test results inadmissible; the trial court is given a degree of discretion in such matters and its ruling will not be reversed absent an abuse of that discretion. Green, supra.
Corporal Luzader notified Sergeant Chapmond about the large amount of drugs and money recovered from Washington. Luzader identified State’s Exhibit 1 at trial as the item she recovered from the trash can where she had seen Washington drop something. Sergeant Chap-mond identified the same exhibit as the item he received from Luzader; he described its original packaging and the envelopes he used to send it to the state crime lab. Chemist Dawson identified Exhibit 1 as the object he received at the crime lab in connection with this case, Exhibit 2 as his lab report showing that the substance was cocaine, and Exhibits 3 and 4 as the inner and outer envelopes in which he received the item. Thus, the State established | Ina chain of custody for the cocaine that Luzader received. The trial court did not abuse its discretion in allowing the evidence.
Affirmed.
HENRY and BAKER, JJ., agree. | [
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DAVID M. GLOVER, Judge.
hThis case comes to us by appellant, Connie Watkins, who was convicted in a bench trial in Greene County Circuit Court of misdemeanor disorderly conduct and fined $100 after a de novo appeal from a conviction in district court. Watkins’s arrest stemmed from events occurring soon after Paragould police officers Jaree Johnson and Mike Tinnin arrived at Watkins’s house on the morning of November 28, 2006, in response to a request from Para-gould Light, Water, and Cable for a civil standby for Crafton Tree Service to trim the trees along the electric lines. Watkins was represented by counsel at trial, but she is prosecuting this appeal pro se. She presents three arguments on appeal:
A. The Appellant’s arrest was unlawful when she was arrested against her will, without a warrant or probable cause, when no warning was given, when there was no indication of criminal activity on her part before arrest, according to ^official police records, in violation of the Fourth Amendment to the Constitution which protects the right of the people to be secure in their persons ... against unreasonable searches and seizures.
B. Procedural guarantees of 5th, 6th, and 14th amendments and similar guarantees of the Arkansas Constitution were violated on every issue including: the right to a speedy trial; to be informed of the nature of the accusations, the right for pre-hearings; the right for a jury trial that is to be waived only in the right manner; the right of a jury trial in light of governmental oppression; the right to be present for critical hearings; the right to have the assistance of counsel for defense; the right of the accused to be confronted with the witnesses against her; and the right to have compulsory process for obtaining witnesses in her favor.
C. Appellant’s convictions for “disorderly conduct” was so totally devoid of evidentiary support as to be invalid under the Due Process Clause of the Fourteenth Amendment.
We affirm Watkins’s conviction.
Although appellant’s sufficiency-of-the-evidence argument is listed as her third argument, because of our prohibition against double jeopardy, we review the sufficiency of the evidence prior to examining trial error. Chrobak v. State, 75 Ark.App. 281, 58 S.W.3d 387 (2001). When the sufficiency of the evidence to support a criminal conviction is challenged on appeal, we review the evidence in the light most favorable to the State and affirm if the verdict is supported by substantial evidence. Johnson v. State, 343 Ark. 343, 37 S.W.3d 191 (2001). Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resort to speculation or conjecture. Id.
Arkansas Code Annotated section 5-71-207(a) (Repl.2006) provides, in pertinent part:
13A person commits the offense of disorderly conduct if, with the purpose to cause public inconvenience, annoyance, or alarm or recklessly creating a risk of public inconvenience, annoyance, or alarm, he or she:
(1) Engages in fighting or in violent, 'threatening, or tumultuous behavior;
(2) Makes unreasonable or excessive noise; [or]
(3) In a public place, uses abusive or obscene language, or makes an obscene gesture, in a manner likely to provoke a violent or disorderly response.
The two police officers and a representative of the tree service testified for the State; Watkins and her husband testified for the defense. Officer Jaree Johnson testified that there was a road going into the field behind Watkins’s house; that she pulled up to the area where Officer Tin-nin’s car and PLWC’s truck were located; that Watkins came out of her house and through an opening in a wire fence that separated her property from the field; and that Watkins told her that PLWC did not have the right to trim the trees. Johnson said that when she walked over to Watkins, Watkins was suddenly gone and “chaos erupted.”
Johnson testified that Watkins was mad, which was evidenced by her demeanor, facial expressions, and tone of voice; that Watkins was going from person to person yelling; and that keeping up with Watkins was difficult. According to Johnson, all of her attempts to calm Watkins down and rationalize with her were unsuccessful, even after Watkins was made aware that she could be arrested. Johnson said that she heard Watkins say “shit.” According |4to Johnson, she saw Watkins approach one of the tree trimmers very quickly and yell at him, causing him to drop the orange cone he was holding and step back; after the tree-trimming crew had placed the cones in the work area, Watkins continued to enter that area, leaving only to go yell at one of the tree trimmers, but returning into the coned-off area. Johnson said that Watkins’s movements toward her intimi dated her because Watkins was so rage-filled.
Officer Mike Tinnin testified that the morning of November 28 was the first time he had met Watkins; that he saw Watkins’s husband out front when he arrived; that he continued on to the back, where there was an open field; that individuals from the tree service were already there when he arrived; and that an individual from PLWC handed him paperwork, told him that they were going to be cutting the trees, and informed him of prior problems they had experienced with Watkins. Tinnin said that Watkins came out while he was talking to the individual from PLWC; that he asked her to point out her property line; that the trees were behind her property line in the field; that he tried to talk to her and reason with her but she did not calm down and remained visibly angry, as evidenced by her tone of voice, facial expressions, stance, posture, and “the way she would walk toward people”; and that she was upset and got loud and boisterous with individuals from the tree service and PLWC. He stated that the more he tried to remove Watkins from the work-safety zone, the more aggravated Watkins became, and it escalated to a point where he told Johnson that they needed to get Watkins out of there. Tin-nin said that there was a lot of yelling and “a little bit of cussing,” saying that he heard the “F” word and “bastard” being used, and that Watkins yelled at the employees of the tree service that they were murderers because they were | .^murdering her trees. Tinnin said that he kept trying to get Watkins out of the work-safety area but that she would not follow his instructions; he warned Watkins that she could be arrested, but she did not calm down after that warning. Tinnin said that if Watkins had just walked away and gone back to her house, he would have been happy and would have just let her go; he said that he did not want to arrest her and was trying to get her to go back to her house, but she refused to go. He testified that he took into consideration Watkins’s physical actions that morning — her aggressiveness, her facial expressions, her stances, the way she rushed at people— and said that he did not know what she might do, that if she was agitated enough “it could come to blows,” and that was what he was there to prevent.
Jake Crafton, the operations manager and vice president of Crafton Tree Service, testified that on the day in question, his crew was located on property adjacent to Watkins’s property, and they coned off the work site and proceeded to work on the trees located on the property behind Watkins’s house. Crafton said that Watkins came out of the house after they pulled up; approached a city utility employee first; and then came over to where his crew was located and began yelling and cussing at his employees and anyone else around, saying, “you f* * *n’ tree trimmers you’re butchering my trees” in a loud confrontational manner, yelling right in his face. Crafton described Watkins as irate and “acting hysterical”; that he felt like she was threatening him; that he was intimidated by her actions; and that he was concerned for the well-being of his employees. He said that Watkins screamed at his crew, calling them “bastards” and yelling, “f* * *n’ tree trimmers, quit doin’ that,” and that she charged at him |fias well as some of his workers in a speedy manner. He said that Watkins continued to enter the coned safety zone on several occasions, he asked the police to escort her out of the area, and he did not try to calm Watkins down because there was no rationalizing with her, that she was “going ballistic.”
The State rested after Crafton’s testimony, and Watkins’s attorney presented a lengthy directed-verdict motion, which was denied. Both Watkins and her husband then testified, basically disputing the officers’ and Crafton’s version of events. At the close of all the evidence, Watkins’s attorney renewed the directed-verdict motion, which was denied.
In finding Watkins guilty of disorderly conduct, the trial court found that Watkins made personal attacks, called employees of the tree service “bastards” and “f* * *ri tree trimmers,” used the “F” word, and yelled, screamed, and cussed at the owner of the tree service and his employees. The trial court found that Watkins’s conduct was threatening and raised concerns about whether the confrontation “would come to blows.” The trial court noted that the tree-service manager testified that he was threatened and intimidated by Watkins’s actions and concerned for his employees because of Watkins’s confrontational, irate, and hysterical behavior, and that Officer Johnson described Watkins as being in a constant state of rage and never calming down, with a rage-filled face, tone, and manner. The trial court observed Officer Tinnin’s description of Watkins as loud, aggravated, and visibly angry, as evidenced by her tone of voice, facial expressions, and posture; the way Watkins would “rush” at people; and that when Tinnin attempted to get Watkins out of the safety zone, Watkins kept coming back and yelling, and would not follow instructions to stay out of the |7safety zone. The trial court found Officers Johnson and Tinnin and Jake Crafton to be credible, while finding the credibility of Watkins and her husband ■ to be suspect and inconsistent.
Sufficiency of the Evidence
Watkins’s sufficiency argument, while styled as being “so totally devoid of evi-dentiary support as to be invalid under the due-process clause of the Fourteenth Amendment,” was presented in three parts: that the State’s witnesses gave “perjured” and false testimony that was inconsistent and that the trial judge was clearly erroneous in her evaluation of the credibility of the witnesses; that “the statute of Disorderly Conduct was used in bad faith” in her arrest; and that her conviction was invalid based upon the First Amendment.
a.Witness Credibility; Inconsistencies in Testimony
With regard to the credibility of witnesses and inconsistencies in witness testimony, it is the province of the trial court, not the appellate court, to evaluate witness credibility and to resolve any conflicts in the evidence. Resolution of conflicts in testimony and assessment of witness credibility is for the finder of fact. Loy v. State, 88 Ark.App. 91, 195 S.W.3d 370 (2004). In this case, the trial court, as the finder of fact, found the testimony of the State’s witnesses to be more credible than the testimony of Watkins and her husband and resolved any conflicts in the testimony in the State’s favor; this court is bound by these determinations.
b.Bad Faith
hWatkins argues that the disorderly conduct statute was used in bad faith to punish her and discourage her in the exercise of her constitutionally protected rights. Watkins did not make this argument to the trial court; therefore, it is not preserved for appeal. Arguments not raised in the trial court, even ones of a constitutional nature, will not be addressed for the first time on appeal. Buford v. State, 368 Ark. 87, 243 S.W.3d 300 (2006).
c.First Amendment Challenge
Watkins argues that her conviction was invalid based upon the First Amendment. While this challenge could have been more artfully formed, it is evident that Watkins is arguing that her conviction for disorderly conduct violates her right to free speech under the First Amendment. As noted earlier, Watkins’s attorney made a lengthy directed-verdict motion. Her trial counsel’s motion included the argument that the First Amendment protects a significant amount of verbal criticism toward police officers and that what was said by Watkins did not amount to “fighting words.”
The trial court, by its comments from the bench, appears to have convicted Watkins under Arkansas Code Annotated section 5-71-207(a)(3), which provides that a person commits disorderly conduct when, with the purpose of causing public inconvenience, annoyance, or alarm, in a public place, she uses abusive or obscene language, or makes an obscene gesture, in a manner likely to provoke a violent or disorderly response. “The right of free speech is not absolute at all times and under all circumstances.” Bailey v. State, 334 Ark. 43, 52, 972 S.W.2d 239, 244 (1998) (citing Chaplinsky v. New Hampshire, 315 U.S. 568, R571, 62 S.Ct. 766, 86 L.Ed. 1031 (1942)). In Johnson, supra, our supreme court held that subsection (a)(3) proscribes only “fighting words” in compliance with Chaplinsky, in which the test for determining whether language fell within this proscription was set forth as “what men of common intelligence would understand would be words likely to cause an average addressee to fight.” Chaplinsky, 315 U.S. at 573, 62 S.Ct. 766.
We find the facts of Johnson support Watkins’s conviction. Police approached Johnson, who was pacing and acting nervously, on a street corner, and when asked his name, Johnson responded, “Why are you f* * * harassing me?” Johnson, with whom officers had previous contact, then began flailing his arms, clenching his fists, and pulling off his shirt. Johnson was arrested for disorderly conduct after he walked to a nearby carport, would not leave, sprinted across the front porch, and wrapped his arms around the railing, refusing to leave. In finding sufficient evidence to support Johnson’s disorderly conduct conviction, the supreme court held that the evidence indicated that Johnson alternated between states of calm and irrationality, and that he was flailing his arms, cursing loudly, and eventually demonstrating a violent demeanor.
Here, although police had not had previous encounters with Watkins, she became and remained irrational, even after being told that she could be arrested; she cursed the officers and tree-service employees; and she aggressively ran from person to person confronting them, both inside and outside the designated work zone. Furthermore, there was testimony from Craf-ton that he was intimidated by her and was concerned for the well being of his employees; Officer Johnson also testified that she was intimidated by Watkins. Considering | inWatkins’s language with the totality of her actions, we hold, as our supreme court found in Johnson, that there is sufficient evidence to uphold Watkins’s conviction for disorderly conduct.
Legality of Arrest/Constitutional Violations
Watkins’s remaining points, the legality of her arrest and several alleged constitutional violations, are not preserved for appeal because Watkins never made those arguments below. Again, arguments not raised in the trial court, even ones of a constitutional nature, will not be addressed for the first time on appeal., Buford, supra.
Affirmed.
VAUGHT, C.J., and PITTMAN, GLADWIN, and MARSHALL, JJ., agree.
HART, J., dissents.
. While there was an audiotape from the officers’ lapel microphones, much of the recorded information was unintelligible. Furthermore, from the record, it appears there were further events that occurred that were not recorded, as evidenced by the testimony provided at trial. With the benefit of the audiotape evidence, the trial court elected to credit the testimony of the State’s witnesses at trial, which is within the trial court's province as finder of fact. Palmer v. State, 60 Ark.App. 97, 959 S.W.2d 420 (1998). | [
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DONALD L. CORBIN, Justice.
| ¶ This is an appeal from an order of the Pulaski County Circuit Court entered on December 9, 2008, in the course of a judicial-dissolution proceeding. Appellant Barry Jewell appeals that part of the order denying his motion to vacate a judgment entered in favor of his former law partner, Appellee/Cross-Appellant Scott Fletcher. Debra Worley, as Special ^Administrator of the Estate of Micheál D. Sims, filed a cross-appeal from that part of the order approving the claim filed by Sims in the dissolution action but rejecting his request to order an unwinding of previous distributions in order to satisfy his claim. Fletcher also cross-appeals that part of the order approving Sims’s claim, arguing that no proof was submitted to support the claim. Because this is a subsequent appeal, our jurisdiction is pursuant to Ark. Sup.Ct. R. l-2(a)(7) (2009). As to Jewell, we affirm. As to Sims, we reverse and remand, and we affirm on Fletcher’s cross-appeal.
This is the third time that this court has had proceedings stemming from the judicial dissolution of the law firm of Jewell, Moser, Fletcher & Holleman, P.A. (JMFH). The underlying facts that precipitated this lengthy litigation were set forth in detail by this court in Sims v. Fletcher, 368 Ark. 178, 248 S.W.3d 863 (2006), part of which can be summarized as follows:
Jewell, a shareholder in JMFH, filed a complaint seeking judicial dissolution and an accounting of JMFH’s assets in Pulaski County Circuit Court on June 19, 2003, alleging that the members of the firm stopped practicing law together on or about August 31, 2002, but continued to collect receivables owed to the firm. Fletcher, also a shareholder at one time, filed a counterclaim against Jewell on July 16, 2003, asserting causes of action for breach of contract, unjust enrichment, breach of fiduciary duty, defamation, intentional destruction of property, fraud, and negligence. Moser, also a shareholder, filed a motion to dismiss Jewell’s complaint pursuant to Ark. R. |3Civ. P. 12(b)(6). In response to Fletcher’s counterclaim and Moser’s motion to dismiss, Jewell filed a motion for summary judgment, asserting that Moser had lost his license to practice law and was no longer a shareholder in JMFH and that Fletcher was also no longer a shareholder and, thus, neither party had standing to challenge the dissolution. The court entered an order on September 22, 2004, granting Jewell’s motion for summary judgment as to the dissolution of JMFH. The trial court subsequently appointed Milas “Butch” Hale to serve as the receiver for JMFH pursuant to Ark.Code Ann. § 4-27-1432 (Repl.2001).
Following entry of the trial court’s order with regard to dissolution, Holle-man, the fourth shareholder of JMFH, sought to intervene in the proceeding in order to seek salaries and benefits owed to him pursuant to his employment agreement with JMFH. The trial court granted Holleman’s motion to intervene. Appellants also sought to intervene in this case in order to assert claims against JMFH, but the trial court determined that their interests would be adequately protected and that it was not appropriate for creditors to intervene in a judicial-dissolution proceeding.
As the dissolution proceeded, the trial court held a hearing on November 8, 2005, to begin adjudicating claims and to take testimony on what assets belonged to the firm, as opposed to individual shareholders. Hale presented the court with a list of claims filed to date and the trial court announced that as long as claims had been filed within the time period established by the receiver, it would allow creditors to amend or supplement claims if needed. The trial court then proceeded to hear testimony and take evidence with regard to what assets belonged to JMFH and what assets belonged to certain individuals, including whether certain fees collected by Holleman after the dissolution proceeding began were fees that belonged to JMFH or to Holleman and Holleman & Associates.
At the conclusion of the hearing, the court instructed the parties, including the creditors, to submit simultaneous briefs on the issues of what assets belong to JMFH and whether, under the receivership statutes, the shareholders had any standing to object to the receiver’s recommendation regarding what claims should be accepted....
14After the parties submitted their briefs, the trial court entered an order on December 29, 2005, finding that the effective date of JMFH’s dissolution was July 25, 2002, and issuing orders that Jewell, Fletcher, and Holleman pay certain monies into the court’s registry for fees that had been recovered on behalf of JMFH. In addition, the trial court ruled that a default judgment obtained by Sims in Lonoke County was void ab initio because the Lonoke County Circuit Court was divested of jurisdiction once the claim for judicial dissolution was filed in Pulaski County. Sims and the other creditors were given thirty days to file additional evidence supporting their claims against JMFH.
Following the submission of amended claims, the trial court entered an order allowing certain claims sought by Jewell, Fletcher, and Holleman, as well as a claim by creditor Betty Hoyt. Appellants’ claims were summarily denied. They filed a joint motion for reconsideration or new trial, and requested the court to issue findings of fact and conclusions of law. The trial court never ruled on either motion, and the motions were subsequently deemed to be denied. No order was ever entered with regard to the causes of action brought by Fletcher in his counterclaim against Jewell.
Id. at 180-82, 243 S.W.3d at 864-65.
Sims and the other creditors appealed the circuit court’s order to this court, but we dismissed the appeal for lack of a final order. Sims, 368 Ark. 178, 243 S.W.3d 863. At the time that Sims filed his direct appeal, he also filed a petition for certiorari or, alternatively, prohibition. Sims v. Cir. Ct. of Pulaski County, 368 Ark. 498, 247 S.W.3d 493 (2007). Therein, he requested, among other relief, that this court prohibit the circuit court from voiding the default judgment he obtained in Lonoke County. Sims also moved for a temporary stay to prohibit the circuit court from disbursing any funds held in the court’s registry as part of the dissolution proceeding, which this court granted. On January 18, 2007, we denied Sims’s request for an extraordinary writ on the basis that he had an adequate | ¡-.remedy available in the nature of a direct appeal. Id. That same day, the circuit court entered an order directing the Pulaski County clerk to disburse the majority of funds held in the court’s registry.
The circuit court subsequently held a hearing regarding Fletcher’s counterclaim against Jewell and entered an order finding, in relevant part, that Fletcher was entitled to judgment against Jewell for office expenses incurred pursuant to an oral agreement between Fletcher and Jewell, in the principal amount of $49,095.15. This order was entered of record on August 1, 2007.
Once the final order was entered, the parties again appealed to this court. In Sims v. Moser, 373 Ark. 491, 284 S.W.3d 505 (2008), Sims argued that the circuit court erred in voiding the default judgment he had obtained in Lonoke County. Sims and the other appellants, who are no longer a part of this litigation, also argued that they were denied due process when the circuit court denied their claims without a hearing. This court agreed, explaining that the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Id. (citing Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)). Accordingly, we reversed and remanded the matter so that the claimants could present their claims at a meaningful hearing. We did not, however, address Sims’s request that we order the circuit court to unwind the previous distributions. Doing so would have | firequired us to issue an advisory opinion as Sims’s claim had not yet been approved, and this court will not issue advisory opinions. Riceland Foods, Inc. v. Pearson, 2009 Ark. 520, 357 S.W.3d 434.
Following remand, Jewell filed a motion to vacate the August 1, 2007 judgment entered against him in favor of Fletcher. Jewell argued that Fletcher had defrauded the court by testifying that he had never benefitted from any immunity agreements in the course of a federal investigation into Jewell and a pending federal indictment against him. According to Jewell, because their case came down to credibility, Fletcher’s perjured testimony rendered the resulting judgment void.
Also on remand, Sims filed a bench memorandum arguing that because his claim was in the form of a judgment, it was not subject to a collateral attack. He further argued that because he was denied due process, he should not be placed at a disadvantage to those claimants who were afforded due process. Sims requested that the circuit court approve his claim and order a refund of previously disbursed funds in an amount sufficient to pay that claim.
A hearing was held in circuit court on October 31, 2008. The court entered a written order on December 9, 2008, ruling relevant to this appeal, that: (1) Jewell’s motion to vacate was denied; (2) Sims’s claim against JMFH was approved in the amount of $683,757.05, an amount representing the default judgment, less $40,000 received by Sims from the Arkansas 17Supreme Court Client Security Fund, and less $16,740 that Sims’s accounting showed applied to a judgment against Keith Moser, rather than a judgment against JMFH; (3) Sims’s request to unwind the previous court orders disbursing funds to JMFH’s shareholders was denied because Sims failed to obtain a stay of those judgments or post a supersedeas bond; and (4) Sims’s request that JMFH’s shareholders be required to refund previously awarded funds was also denied. This appeal followed.
Jewell’s Appeal
As his sole point on appeal, Jewell argues that the circuit court abused its discretion in denying his motion to vacate the judgment entered against him on August 1, 2007, and awarding Fletcher $49,095.15 for recoupment of office expenses. Specifically, Jewell argues that the order should be vacated pursuant to Ark. R. Civ. P. 60(c)(4) on the basis of Fletcher’s purported fraud and misrepresentation. Fletcher counters that Jewell cannot establish the essential elements of fraud, particularly that the alleged misstatements were material and that the trial court relied on the false statement in ruling as it did.
We note at the outset that it is within the discretion of the circuit court to determine whether it has jurisdiction under Rule 60 to set aside a judgment, and the question on appeal becomes whether there has been an abuse of that discretion. See New Holland Credit Co., LLC v. Hill, 862 Ark. 329, 208 S.W.3d 191 (2005).
Rule 60(c) states in relevant part:
(c) Grounds for Setting Aside Judgment, Other than Default Judgment, After Ninety Days. The court in which a judgment, other than a default judgment |s[which may be set aside in accordance with Rule 55(c)] has been rendered or order made shall have the power, after the expiration of ninety (90) days of the filing of said judgment with the clerk of the court, to vacate or modify such judgment or order:
(4) For misrepresentation or fraud (whether heretofore denominated intrinsic or extrinsic) by an adverse party.
Ark. R. Civ. P. 60(c)(4) (2009). Thus, pursuant to Rule 60(c)(4), a judgment may be vacated more than ninety days after being filed with the clerk where there was misrepresentation or fraud.
Here, the allegations of fraud center around testimony given by Fletcher at the August 1, 2007 hearing concerning Fletcher’s counterclaim against Jewell. Fletcher alleged that he had an oral contract with Jewell to share office expenses from September through December of 2002, with the men agreeing to split everything fifty-fifty. According to Fletcher, Jewell told him that it would take some time to accumulate enough cash flow to begin paying his half of the expenses. Fletcher stated that he agreed to pay all the expenses until the end of the year, at which time Jewell was to pay him back. Before the end of the year, however, the two began disagreeing about the amount Jewell owed. Fletcher claimed that Jewell owed him approximately $49,000, while Jewell believed he owed approximately $36,000.
On cross-examination, counsel for Jewell asked Fletcher if he had had any conversations with anyone from the U.S. Attorney’s Office or the Department of Justice regarding Jewell and an ensuing federal investigation of him. He also asked Fletcher if he had |9any type of immunity agreements or other agreements with any law enforcement agencies to provide testimony against Jewell. Fletcher admitted that he had talked with certain people but denied having any type of immunity agreements. The following colloquy ensued:
[Counsel for Jewell]: Do you have any sort of immunity agreement with any law enforcement agency?
[Fletcher]: No.
[Counsel FOR Jewell]: Do you have any understanding, either verbal or written, with any sort of law enforcement agency?
[Fletcher]: No.
[Counsel for Jewell]: Have you agreed with any law enforcement agency to provide testimony against Barry Jewell?
[Fletcher]: No.
Thereafter, Jewell, who was facing a pending federal indictment related to his association with JMFH, asserted his Fifth Amendment privilege against self-incrimination in response to questions from counsel for Fletcher. As previously mentioned, the circuit court ultimately entered an order awarding $49,095.15 to Fletcher on his counterclaim.
The federal case against Jewell proceeded to trial and during the course of this trial, Jewell learned that Fletcher did have certain agreements with federal authorities. Fletcher testified that he obtained a “Kastigar letter” in 2002 that provided that any statements Fletcher made during a proffer discussion regarding a criminal investigation by the Justice Department could not be offered by the government in its case-in-chief in a criminal prosecution of Fletcher. The second agreement was executed in 2006 and granted Fletcher use immunity 1 inin exchange for his proffer of information. It was this information that Jewell relied on in his motion to vacate pursuant to Rule 60(c)(4), arguing that it constituted fraud and misrepresentations perpetrated by Fletcher. The circuit court entered an order on December 9, 2008, denying the motion to vacate.
On appeal, Jewell asserts that the circuit court abused its discretion in denying the motion to vacate because the evidence he submitted established that Fletcher made a false representation of fact in denying the existence of any immunity agreements; that Fletcher knew the statements were false; that he made them in order to bolster his own credibility; and that the circuit court relied on Fletcher’s misrepresentations. Thus, according to Jewell, Fletcher’s credibility was of paramount importance to the circuit court’s ruling, and Jewell was harmed because this evidence demonstrating Fletcher’s bias against Jewell was excluded. Jewell further asserts that had he been allowed to explore this bias, the circuit court could have found that Fletcher’s testimony was not credible and rejected it. To the contrary, Fletcher asserts that the circuit court did not abuse its discretion in denying Jewell’s motion to vacate because his answers to Jewell’s questions at the 2007 hearing were accurate and thus could not constitute fraud. Fletcher further asserts that he did not have immunity from prosecution for any of his acts or conduct; rather, the government agreed not to use specific statements against him.
In order to prove fraud, a plaintiff must prove five elements under Arkansas law: (1) that the defendant made a false representation of material fact; (2) that the defendant knew |nthat the representation was false or that there was insufficient evidence upon which to make the representation; (3) that the defendant intended to induce action or inaction by the plaintiff in reliance upon the representation; (4) that the plaintiff justifiably relied on the representation; and (5) that the plaintiff suffered damage as a result of the false representation. See Bomar v. Moser, 369 Ark. 123, 251 S.W.3d 234 (2007). The party seeking to set aside a judgment on the basis of fraud has the burden of proving fraud by clear, cogent, and convincing evidence, or, as our courts have sometimes said, clear, strong, and satisfactory proof. Bullock v. Barnes, 366 Ark. 444, 236 S.W.3d 498 (2006).
No judgment will be set aside, however, unless the defendant asserts a valid defense to the plaintiffs action in his or her motion and, upon hearing, makes a prima facie showing of such a defense. Ark. R. Civ. P. 60(d) (2009); see also Hargis v. Hargis, 292 Ark. 487, 731 S.W.2d 198 (1987) (holding that judgments will not be vacated unless a meritorious defense is alleged and proved). This court has defined a “meritorious defense” as the following:
[Ejvidence (not allegations) sufficient to justify the refusal to grant a directed verdict against the party required to show the meritorious defense. In other words, it is not necessary to prove a defense, but merely present sufficient defense evidence to justify a determination of the issue by a trier of fact.
Martin v. Jetkins, 320 Ark. 478, 479, 897 S.W.2d 567, 567 (1995) (quoting Tucker v. Johnson, 275 Ark. 61, 66, 628 S.W.2d 281, 283-84 (1982)).
Here, we simply cannot say that Jewell’s allegation that Fletcher perjured himself is a valid defense to the action for breach of an oral contract. Even if we were to agree that Fletcher’s testimony constituted fraud or misrepresentations, the asserted link between haFletcher’s fraud and the court’s entry of judgment on the oral contract is simply too tenuous to support a conclusion that Jewell established a prima facie showing of an affirmative defense to the breaeh-of-contract claim. Moreover, Jewell and Fletcher were embroiled in a heated judicial dissolution of their former law firm. It was no secret that there was animosity between the two men, and this was information known to the circuit court when it found Fletcher’s testimony regarding the oral contract to be credible. Accordingly, the circuit court did not abuse its discretion in denying Jewell’s motion to vacate.
Sims’s Appeal
We turn now to Sims’s arguments. First, Sims argues that he was again denied his right to due process because upon remand the circuit court, while providing him with a hearing, failed to provide any meaningful opportunity to protect his rights. According to Sims, the October 31, 2008 hearing was meaningless with respect to his property rights and did not satisfy the requirements of due process. Fletcher and Holleman assert that Sims’s argument is without merit, as he received a full and fair hearing on October 31, as evidenced by the fact that the circuit court approved Sims’s claim. Moreover, they assert that Sims was not entitled to an unwinding of previous distributions because he had failed to seek or obtain a stay of enforcement of those orders or posted the necessary supersedeas bond prior to his previous appeal. We agree with Sims that he has again been denied due process.
The appropriate starting point for our analysis of Sims’s due-process argument is this court’s very discussion of due process in our decision from 2008, where we stated as follows:
11sThe fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be “condemned to suffer great loss.” It depends upon whether the interest in avoiding that loss outweighs the governmental interest in summary adjudication. Thus, determining what process is due involves the consideration of three factors:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.
Sims, 373 Ark. at 499, 284 S.W.3d at 513 (citations omitted) (quoting Tsann Kuen Enters. Co. v. Campbell, 355 Ark. 110, 119-20, 129 S.W.3d 822, 827-28 (2003)). The key language here is that due process requires an opportunity to be heard at “a meaningful time and in a meaningful manner.” Id. Similarly, this court stated that “[d]ue process requirements are satisfied if the property owner has reasonable notice and a reasonable opportunity to be heard and to present his claim or defense, or to protect and enforce his rights, before a tribunal having power to hear and rule his cause.” Davis v. Schimmel, 252 Ark. 1201, 1208, 482 S.W.2d 785, 789 (1972) (citing Dohany v. Rogers, 281 U.S. 362, 50 S.Ct. 299, 74 L.Ed. 904 (1930)).
In the 2008 appeal, we analyzed the aforementioned requirement of due process and concluded:
In examining the due-process factors, it is initially clear that appellants have a private interest in their personal property, here, their money. What is of specific interest here is the risk of an erroneous deprivation of the claimants’ interests because they were not given the opportunity to be heard regarding 114their individual claims. Additionally, there are not additional or substitute procedural safeguards in this kind of a case because it involves the dissolution of JMFH. Once JMFH is completely dissolved and its assets are distributed, the creditors will no longer have a method to recoup JMFH’s assets to pay their claims. Finally, there is no government interest present here that outweighed the importance of giving the individual claimants an opportunity to support their claims against JMFH before a final judgment was issued.
Sims, 373 Ark. at 500, 284 S.W.3d at 514. Our opinion was clear that Sims was entitled to a meaningful hearing, and although Sims was granted a hearing following our remand, the circuit court simply granted Sims’s claim without any attempt to remedy the problem it caused in the first instance by depriving Sims of his right to due process. Holding a hearing after the funds had been distributed and subsequently failing to provide any mechanism for enforcing a valid claim does not comport with due process or with this court’s holding in 2008. This court has noted that a circuit court should look beyond the words of reversal and look to the effect of the opinion in proceeding upon remand. See Glover v. Woodhaven Homes, Inc., 346 Ark. 397, 57 S.W.3d 211 (2001) (quoting Kneeland v. Am. Loan & Trust Co., 138 U.S. 509, 11 S.Ct. 426, 34 L.Ed. 1052 (1891)).
Sims states that there was approximately $2,746,813 in the court’s registry prior to the disbursements stemming from the court’s order on January 18, 2007. By the time of the hearing on October 31, 2008, however, there remained only $151 in the court’s registry. According to Sims, in order for the October 31 hearing to be meaningful as required by the Due Process Clause, he had to have been afforded the opportunity to collect on his claim in the same manner, as if his rights had never been violated in the first place. Sims further asserts |1Bthat the circuit court placed an additional burden on him by requiring him to overcome the burden of seeking to have the prior distributions unwound.
The United States Supreme Court’s decision in McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, 496 U.S. 18, 110 S.Ct. 2238, 110 L.Ed.2d 17 (1990), is instructive on this point. There, the Supreme Court was presented with a situation wherein the Florida Supreme Court declared a tax to be unconstitutional and ordered prospective relief in the form of an injunction. The Florida Supreme Court, however, refused to order a refund of the illegally paid taxes. In reversing, the United States Supreme Court concluded that prospective relief, by itself, was an insufficient remedy. The Court stated as follows:
If a State places a taxpayer under duress promptly to pay a tax when due and relegates him to a postpayment refund action in which he can challenge the tax’s legality, the Due Process Clause of the Fourteenth Amendment obligates the State to provide meaningful backward-looking relief to rectify any unconstitutional deprivation.
Id. at 31, 110 S.Ct. 2238 (footnotes omitted). Just as the state of Florida was required to provide some backward-looking relief to rectify an unconstitutional deprivation, so was the circuit court in this case. The circuit court’s action of holding a hearing and summarily affirming Sims’s claim, without providing a mechanism to enforce the subsequently approved claim, was not sufficient to satisfy the “meaningful” requirement of due process.
That leads us to the arguments raised by Fletcher and Holleman that Sims was not entitled to have the distributions unwound because he failed to obtain a stay or post a sup'ersedeas bond. They raised this argument for the first time to the circuit court at the | ^October 31, 2008 hearing. Consequently, while the circuit court approved Sims’s claim, it refused to unwind the distributions or to order the shareholders to refund monies previously paid to them. Now, on appeal, Fletcher and Holleman assert that the circuit court correctly denied Sims’s requested relief because of his failure to obtain a stay or post a bond prior to his previous appeal. Under the doctrine of law of the case, because Fletcher and Holleman failed to raise this argument to this court in the 2008 appeal, they were precluded from raising it to the circuit court on remand and, likewise, cannot now assert it as a basis for affirming the circuit court.
The doctrine of law of the case prohibits a court from reconsidering issues of law and fact that have already been decided on appeal. McWhorter v. McWhorter, 2009 Ark. 458, 344 S.W.3d 64; Jones v. Double “D” Props., 357 Ark. 148, 161 S.W.3d 839 (2004). The doctrine provides that a decision of an appellate court establishes the law of the case for the circuit court upon remand and for the appellate court itself upon subsequent review. See Jones, 357 Ark. 148,161 S.W.3d 839. The doctrine serves to effectuate efficiency and finality in the judicial process and its purpose is to maintain consistency and avoid reconsideration of matters once decided during the course of a single, continuing lawsuit. See id. It further provides that the decision of the first appeal becomes the law of the case, and is conclusive of every question of law or fact decided in the former appeal, and also of those which might have been, but were not, presented. See Slaton v. Slaton, 336 Ark. 211, 983 S.W.2d 951 (1999).
h7In the instant case, Fletcher and Holleman could have raised the issue of Sims’s action or inaction as to a stay or supersedeas bond to this court in the 2008 appeal. In his brief to this court in the 2008 appeal, Sims stated in his statement of the case that “[o]n January 18, 2007, the court entered an order for the disbursement of funds remaining in the court registry.” Sims then argued that this court should reverse the circuit court’s order disbursing the funds and asked that “the Pulaski County Circuit Court be ordered to collect the funds that have been distributed and re-distribute in accordance with that decision.” And, then in his prayer for relief, Sims again asked this court to reverse the order of distribution. But, neither Fletcher nor Holleman argued in response that Sims was not entitled to such relief because of his failure to obtain a stay or post a bond. Thus, according to the doctrine of law of the case, where the argument could have been raised to this court in that 2008 appeal, but was not, that issue was improperly considered by the circuit court on remand and cannot form the basis for this court’s affirmance .on such grounds. See id. This is particularly true where the arguments now raised by Fletcher and Holleman regarding the stay and supersedeas bond are based on events that transpired prior to the circuit court’s 2007 order disbursing the funds.
Even if we were to ignore this procedural defect, Fletcher and Holle-man’s arguments regarding the stay and supersedeas bond are without merit. Rule 62 of the Arkansas Rules of Civil Procedure, and Rule-8 of the Arkansas Rules of Appellate Procedure — Civil, govern super-sedeas bonds. Rule 62(d) provides that, “[w]hen an appeal is taken, the appellant by lisgiving a supersedeas bond may obtain a stay.” Ark. R. Civ. P. 62(d) (2009). Appellate Rule 8(c) provides as follows:
Whenever an appellant entitled thereto desires a stay on appeal, he shall present to the court for its approval a super-sedeas bond which shall have such surety or sureties as the court requires. The bond shall be to the effect that appellant shall pay to appellee all costs and damages that shall be affirmed against appellant on appeal; or if appellant fails to prosecute the appeal to a final conclusion, or if such appeal shall for any cause be dismissed, that appellant shall satisfy and perform the judgment, decree or order of the circuit court.
Ark. R.App. P.-Civ. 8(c) (2009). The purpose or effect of a supersedeas bond is to secure the payment of a judgment following its affirmance on appeal. See Bailey v. Delta Trust & Bank, 359 Ark. 424, 198 S.W.3d 506 (2004); Ryder Truck Rental, Inc. v. Sutton, 305 Ark. 374, 807 S.W.2d 909 (1991). Rule 8(c) affords the court sufficient discretion to marshal security, so long as security remains the ultimate goal. We have further held that the bond must be sufficient in amount to guarantee that the appellant will pay the appellee “all costs and damages that shall be affirmed against appellant on appeal.” Bailey, 359 Ark. at 440, 198 S.W.3d at 518 (quoting Schramm v. Piazza, 53 Ark. App. 99, 100, 918 S.W.2d 733, 734 (1996) (per curiam)). In other words, we have consistently recognized the purpose of a supersedeas bond to be securing the payment of a judgment following affirmance on appeal. Id., 359 Ark. 424, 198 S.W.3d 506; see also Sutton, 305 Ark. 374, 807 S.W.2d 909. Thus, by the plain language of the rules and our caselaw addressing them, neither Rule 62 nor Appellate Rule 8 are applicable to this case. JMFH did not have a judgment against Sims. Sims owed JMFH nothing. It was Sims who sought to prove a claim against JMFH.
| ^Moreover, this court has recognized that a supersedeas bond is not appropriate in the absence of a judgment. Beverly Enters.-Ark, Inc. v. Cir. Ct. of Independence County, 367 Ark. 13, 238 S.W.3d 108 (2006). There, this court reversed a circuit court order requiring petitioner to post a supersedeas bond because of its uncertain financial status in the absence of any type of judgment, stating the following:
When the circuit court granted the request for the supersedeas bond under Rule 8, there was no judgment for monetary or injunctive relief to be protected by a supersedeas bond. “The purpose or effect of a supersedeas bond is to secure the payment of a judgment following its affirmance on appeal.” A su-persedeas bond required under Rule 8 is not imposed to protect appellees against alleged financial instability of an appellant prior to an entry of judgment for damages that might never be obtained. In the present case, there was no judgment for damages on which to stay execution. The case is yet to be tried. The circuit court erred in granting the request for a supersedeas bond under Rule 8.
Id. at 16, 238 S.W.3d at 110 (citations omitted). Just as a supersedeas bond was not appropriate in Beverly, it was not appropriate here. All Sims had was a claim in a dissolution proceeding that was rejected by the circuit court.
Moreover, the circuit court’s reliance on Butt v. Evans Law Firm, P.A., 351 Ark. 566, 98 S.W.3d 1 (2003), for the proposition that Sims was not entitled to relief is misplaced. In that case, an intervenor challenged the circuit court’s order awarding attorneys’ fees in an illegal-exaction suit. This court affirmed the circuit court’s award of attorneys’ fees, even though they had been improperly calculated and were thus excessive. In so ruling, this court held that the intervenor could not “unravel attorneys’ fees” where he took “no steps to stay the order awarding attorneys’ fees or to post a supersedeas bond.” Id. at 587, 98 S.W.3d at 13 12n(emphasis added) (footnote omitted). The circuit court in the instant case concluded pursuant to our holding in Butt, that Sims should have obtained a superse-deas bond and his failure to do so prohibited him from challenging the distribution of funds. The circuit court ignored the entirety of our holding in Butt, however. We concluded that the intervenor was not entitled to disgorge the already-paid attorneys’ fees because he did not post the bond or obtain a stay.
In this case, Sims filed a motion requesting a stay of the circuit court’s distribution order after the circuit court summarily denied his claim. On February 14, 2006, the claimants, including Sims, collectively filed a motion for reconsideration or new trial, or, alternatively, for a stay of the circuit court’s order requiring payment of the other claims. Therein, they specifically requested the circuit court to “stay its order and not to authorize the disposition of any funds held in the registry of the Court until this matter can be heard on appeal.” The circuit court, however, never ruled on this motion and it was deemed denied. Sims then sought a writ of certio-rari, or alternatively prohibition, in this court, arguing that the circuit court had denied his motion for a stay. This court denied his requested writ, holding that he had an adequate remedy available to him, namely an appeal. Sims, 368 Ark. 498, 247 S.W.3d 493. Then, Sims pursued his appeal. Clearly Sims took steps to seek a stay. He could not force the circuit court to rule on his motion to stay, and when the court in fact refused to rule on it, he sought extraordinary relief in this court, which was also denied. Thus, the instant case is distinguishable, as Sims took action and attempted to |¾1 prevent the distribu tion of funds. He did not sit back and do nothing, as did the litigant in Butt.
Because the circuit court denied Sims his right to due process on remand by failing to provide him with a meaningful hearing and by incorrectly determining that Sims was barred from seeking relief, we reverse and remand on this point. We note that Sims requests this court to determine what mechanism, i.e., ordering an unwinding of the distributions or ordering actions against the shareholders of JMFH, shall be used to pay his claim. We decline this request, however, as it is not for this court to fashion the appropriate remedy. That is an issue to be addressed by the circuit court on remand.
Sims’s final point on appeal is that the circuit court erred in reducing his claim by $40,000 for monies paid by this court’s Client Security Fund and by another $16,740 for attorneys’ fees awarded to Sims in connection with the Lonoke County judgment that was entered against Mos-er in his individual capacity. Sims argues that these funds could not be used to reduce his claim as they constituted a collateral source. Fletcher and Holleman argue that the circuit court properly offset Sims’s claim, as the collateral-source rule is inapplicable.
The collateral-source rule is a general rule providing that recoveries from collateral sources do not redound to the benefit of the tortfeasor, even though double recovery for the same damage by the injured party may result. Shipp v. Franklin, 370 Ark. 262, 258 S.W.3d 744 (2007); Bell v. Estate of Bell, 318, Ark. 483, 885 S.W.2d 877 (1994); Amos v. Stroud, 252 Ark. 1100, 482 S.W.2d 592 (1972). For the collateral-source rule to apply, the third-party 122payment must be wholly independent of the tortfeasor. Douglas v. Adams Trucking Co., Inc., 345 Ark. 203, 46 S.W.3d 512 (2001).
The purpose of the Client Security Fund is to protect clients from losses caused by the dishonest conduct of an attorney. Healthcare Recoveries, Inc. v. Ark. Client Sec. Fund, 363 Ark. 102, 211 S.W.3d 512 (2005). Here, the Client Security Fund paid to Sims $40,000 as a result of Moser’s misdeeds. In receiving those funds, Sims had to sign an indemnity agreement promising to repay those funds if a judgment against Moser was ever obtained. Thus, the Client Security Fund was wholly independent and the funds it paid to Sims constituted a collateral source. Accordingly, it was improper for the circuit court to reduce Sims’s claims by $40,000.
We now consider the $16,740 paid as a result of an order of the Lonoke County Circuit Court regarding outstanding attorneys’ fees owed by Moser. The judgment that Sims obtained in Lonoke County was against Keith Moser, Moser & Associates, and JMFH, jointly and severally. In addition, the Lonoke County Circuit Court awarded Sims attorneys’ fees in the amount of $14,062.76, an amount that with interest now totals $16,740. After Moser received a distribution as part of the dissolution, Sims executed a writ of garnishment and received a payment of $45,140.45. From that payment, Sims allocated $16,740 of the money to cover attorneys’ fees, with the remaining funds attributed to Sims’s claim against JMFH. Sims now argues that these funds were a collateral source as well, because the judgment he | ^obtained was against Moser and JMFH jointly and severally, so that they were each liable for the entire judgment owed. We disagree with Sims. Regardless of the nature of the judgment he obtained, the fact remains that the money allocated for attorneys’ fees came from a garnishment of Moser, who was the tortfeasor. Thus, the funds were not from a wholly independent source, and the circuit court properly offset the judgment by the amount of $16,740.
Fletcher’s Cross-Appeal
Fletcher argues on cross-appeal that the circuit court erred in approving Sims’s claim in the absence of any proof supporting that claim. Fletcher argues that the circuit court ruled as a matter of law that the default judgment obtained by Sims in Lonoke County Circuit Court supported the claim without any further proof. According to Fletcher, Sims’s judgment was based on an allegation that Moser assisted in a wrongful transfer of real property valued at $650,000 and belonging to Sims and that this money was deposited in JMFH’s trust account. Fletcher argues that this transaction occurred after the dissolution date of JMFH and thus his documents on their face establish no claim against JMFH. Sims counters that the circuit court properly accepted the default judgment that was obtained against JMFH and was not required to look beyond that judgment. Sims is correct.
At the hearing upon remand, Fletcher moved for a directed verdict on the claim of Sims’s, arguing as follows:
Your Honor, we move for a directed verdict on the claim of Michael Sims. There’s been no proof of his claim. He has submitted judgments. | ^There’s no testimony about what his claim was against JMFH, whether JMFH did anything to warrant the payment of any JMFH assets to him.
The default judgment is not a claim. It does not satisfy the requirements for the claim under the dissolutions statutes. There’s been a failure of proof in that regard, so we move for a directed verdict on Sims’ claim.
The court ultimately denied the motion, allowing Sims’s claim, minus the deductions of $40,000 representing payment to Sims by the Client Security Fund and the $16,000 amount paid by Moser for attorneys’ fees.
There is no merit to Fletcher’s argument on cross-appeal. First, Fletcher fails to cite any authority in support of his argument that Sims failed to prove his claim. This court may refuse to consider an argument where appellant fails to cite any legal authority, and the failure to cite authority or make a convincing argument is sufficient reason for affirmance. See Middleton v. Lockhart, 344 Ark. 572, 43 S.W.3d 113 (2001).
Moreover, when Sims initially presented his default judgment as a claim in the judicial-dissolution proceeding, the circuit court ruled that it was void ab initio because the Lonoke County Circuit Court lacked jurisdiction to enter an order against JMFH when it had a pending proceeding in Pulaski County Circuit Court. This court reversed that ruling, explaining that there was concurrent jurisdiction under the applicable statutory law. Thus, upon remand, Sims again presented his default judgment by submitting certified copies of records establishing that judgment. That judgment was rendered after JMFH failed to appear and defend; thus, the judgment itself reflects no factual allegations or dates as set forth by Fletcher and was evidence sufficient to support the circuit court’s approval of that claim. lafiFletcher’s argument to the contrary constitutes an impermissible collateral attack, as it is an attack on the judgment in any manner other than by an action or proceeding, whose very purpose is to impeach or overturn the judgment. See Nationwide Ins. Enter. v. Ibanez, 368 Ark. 432, 246 S.W.3d 883 (2007). As there is no merit to Fletcher’s cross-appeal, the circuit court’s denial of his directed-verdict motion should be affirmed.
Holleman’s Argument
Lastly, Holleman argues in his brief that the circuit court erred when it deemed Sims’s Lonoke County judgment valid as a matter of law because Sims fraudulently obtained that judgment. As any attack by Holleman to the validity of the circuit court’s ruling regarding Sims’s judgment would be in the nature of a cross-appeal, it was incumbent on Holleman to file a timely notice of cross-appeal. The record reflects that Holleman did file a notice of cross-appeal, but it was untimely. Prior to filing a notice of cross-appeal, Holleman filed a posttrial motion for reconsideration but this motion was not filed within ten days of entry of the court’s order; thus, the time for filing an appeal was not extended. See Ark. R. Civ. P. 59 (2009) (a motion for new trial must be filed not later than ten days after entry of the judgment). Accordingly, Holleman’s purported notice of cross-appeal filed some months after the order was entered was in no way timely, and we are precluded from considering his argument on cross-appeal.
_|^Affirmed as to Jewell; affirmed in part; reversed and remanded in part as to Sims; affirmed as to Fletcher’s cross-appeal; dismissed as to Holleman’s cross-appeal.
BROWN and WILLS, JJ., dissent part; concur in part.
. Mr. Sims was killed in an automobile collision on his way to the October 31, 2008 hearing in this matter. Although the Estate is now the proper party in this appeal, we will continue to refer to Mr. Sims as the appealing party for purposes of continuity with the prior appeals decided by this court. Moreover, although Mr. Sims filed a notice of cross-appeal after Mr. Jewell filed his notice of appeal, Mr. Sims’s appeal is more in the nature of a direct appeal.
. In Sims, 373 Ark. 491, 284 S.W.3d 505, we also rejected Jewell’s arguments on appeal that the circuit court erred in denying his motion for continuance or for a stay of Fletcher's counterclaim
. Ultimately, the only claimants who received disbursements were the four shareholders of JMFH.
. The actual amount allocated for attorneys' fees was $16,735.45, but the circuit court rounded up that sum to $16,740.
. Fletcher and the others previously sought to have the default judgment set aside in Lonoke County Circuit Court and were unsuccessful. | [
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JIM HANNAH, Chief Justice.
[,Appellant Roderick Williams was convicted of capital murder, kidnapping, first-degree domestic battering, endangering the welfare of a minor, and being a felon in possession of a firearm, and he was sentenced to a term of life imprisonment plus seventy-two years. On appeal, he contends that the circuit court erred in failing to grant a mistrial after a witness falsely accused him of having been previously convicted of terroristic threatening. He further contends that the circuit court’s admonition to the jury following the statement only served to bolster the false testimony and constitutes an additional ground for reversal. Williams also contends that the circuit court erred in admitting a statement that his son allegedly made to law enforcement on the night of the murder because the statement was manifestly prejudicial, lacked probative value, and constituted inadmissible hearsay. Finally, Williams makes a cumulative-error argument, contending that this case requires reversal because all of the errors | gcommitted by the circuit court were patently prejudicial to his defense and prohibited him from receiving a fair trial. Because this is a criminal appeal in which a sentence of life imprisonment has been imposed, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1 — 2(a)(2) (2010). We reverse and remand to the circuit court.
Testimony at trial revealed the following facts. On the evening of April 26, 2007, Clara Cobb was shot and killed while on the front porch of her home in Pickens. At home with her at the time of her murder were her daughter, Kerman Harris, and Harris’s infant daughter, KyBriunna. Williams, the father of KyBriunna, went to the house that evening, and Cobb went out on the porch to speak to him. While on the porch, Williams loaded the shotgun he was carrying and shot Cobb in the abdomen. He then went inside the house and forced Harris and the baby outside and into the car with him and his uncle. Williams beat Harris with a shotgun until it broke, breaking her arm and wrist, and then put his uncle and the baby out on the side of the road. Williams experienced car trouble, and he and Harris caught a ride to a trailer, where they stayed until the following afternoon when the SWAT team arrived. Williams was then taken into custody.
Williams was subsequently tried by a jury and, as already noted, was convicted of capital murder, kidnapping, first-degree domestic battering, endangering the welfare of a minor, and being a felon in possession of a firearm, and was sentenced to life imprisonment, plus seventy-two years. He now appeals.
Williams contends that the circuit court erred in refusing to grant a mistrial after Harris testified falsely that he had previously been convicted of terroristic threatening for threats he Rmade to Cobb. Additionally, Williams contends that the circuit court’s admonition to the jury to disregard the testimony only served to further bolster the false statement and constitutes an additional ground for reversal.
The decision to grant or deny a motion for mistrial is within the sound discretion of the trial court and will not be overturned absent a showing of abuse or manifest prejudice to the appellant. Johnson v. State, 366 Ark. 8, 233 S.W.3d 123 (2006). A mistrial is a drastic remedy and should only be declared when there is er ror so prejudicial that justice cannot be served by continuing the trial, and when it cannot be cured by an instruction to the jury. Tryon v. State, 371 Ark. 25, 268 S.W.3d 475 (2007).
At trial, during the direct examination of Harris, the prosecutor questioned her about Williams’s relationship with her mother, Cobb. The following colloquy took place between the prosecutor and Harris:
Q: To the best of your knowledge, all right, do you have any great knowledge from actually being present in any conversation or anything like that to whether your momma and the Defendant, Roderick Williams, did not like one another? Was there any kind of — Was she preventing him from seeing the baby or anything like that?
A: No, she wasn’t.
Q: Did she ever sign a protection order on him or anything like that?
A: No, she didn’t, but he had threatened her. And when she went to court it was terroristic threatening, which Roderick Williams was convicted of.
At that point, defense counsel objected, contending that Harris’s statement was false and that |4no instruction could cure the prejudice. The circuit court denied the motion and instructed the jury as follows:
The CouRT: Also, there’s one thing I want to bring to your attention and that is, during the questioning by the prosecutor just before the recess, in response to a question, the witness here indicated or stated that the Defendant Roderick Williams had been convicted of terroristic threatening. That particular response is to be disregarded. And when I say it should be disregarded, basically that means that during your deliberation you should not consider that particular response. Okay.
Williams asserts that, based on established precedent, Harris’s false accusation was so prejudicial, he is entitled to a new trial. In support of this argument, Williams cites Moore v. State, 823 Ark. 529, 915 S.W.2d 284 (1996); Lackey v. State, 283 Ark. 150, 671 S.W.2d 757 (1984); Wingfield, v. State, 303 Ark. 291, 796 S.W.2d 574 (1990); and Green v. State, 365 Ark. 478, 231 S.W.3d 638 (2006).
In Moore, the defendant was on trial for the capital murder and rape of a ninety-year-old woman, and of the burglary of her home. During cross-examination by defense counsel, a witness who testified that the defendant had confessed to killing the woman was asked if anyone else was present at the time of the confession. The witness answered, “No, but he admitted to killing another woman to his brother.” Moore, 323 Ark. at 536, 915 S.W.2d at 288. The defendant moved for mistrial, and the motion was denied. The trial court admonished the jury to disregard the witness’s answer to defense counsel’s question. We reversed the trial court, stating that the witness’s “unresponsive testimony that the appellant had admitted he killed another woman was so prejudicial that it could not be cured by an [¡¡admonition to the jury,” and that “the trial court’s denial of the motion for mistrial was abuse of discretion in the face of such a patently inflammatory and prejudicial statement.” Id. at 537, 915 S.W.2d at 289.
In Lackey, the trial court permitted the State to elicit testimony that the defen dants, who were on trial for rape, had given marijuana to three children. The defendants moved for a mistrial, contending that the evidence was highly prejudicial. The trial court denied the motion for mistrial, but admonished the jury to disregard the testimony. We reversed, due to the irrelevant and prejudicial nature of the testimony, stating that the “admonition in this case was useless, the damage having been done.” Lackey, 283 Ark. at 153, 671 S.W.2d at 759 (citing Maxwell v. State, 279 Ark. 423, 652 S.W.2d 31 (1983) (holding that, in a prosecution for the first-degree murder of a woman, where defendant admitted on the stand that he was a convicted rapist, a mistrial was warranted and an admonition could not cure the error where a prosecutor referenced the age — eleven years old — of the rape victim)).
In Wingfield, we held that the trial court abused its discretion in denying the defendant’s motion for mistrial where, during direct examination by defense counsel, a law enforcement witness referenced a polygraph examination that he had given to another witness who was favorable to the prosecution. The defendant moved for a mistrial, contending that the jury would presume that the police and prosecution believed the witness because he took — and must have passed — a polygraph examination. We reversed and remanded, holding that, under the facts of the case, the reference to the polygraph test was an attempt by the police officer to bolster the veracity and credibility of a witness; therefore, it constituted prejudicial error.
|Jn Green, the defendant was tried on four counts of capital murder and one count of kidnapping. At trial, a witness for the State testified that she was afraid for her brother, one of the murder victims, because her brother and her nephew had stolen some of the defendant’s marijuana plants and her nephew had died mysteriously after the theft. The defendant moved for a mistrial, but the trial court instead offered a limiting instruction. The defendant accepted the offer, but a limiting instruction was not immediately given. After the same witness made another reference to the theft of marijuana plants, the defendant renewed his motion for mistrial. The trial court again offered a limiting instruction, but this time the defendant responded, “I don’t know yet.” Green, 365 Ark. at 495, 231 S.W.3d at 652. Later, the trial court offered a limiting instruction that “there’s been absolutely nothing to prove” a link between the defendant and the nephew’s disappearance, and that “it was only elicited for the fact to show fear on behalf of [the witness].” Id., 231 S.W.3d at 652. The defendant declined the limiting instruction on the basis that he feared it would be more prejudicial. Upon reviewing the testimony, we stated: “First, [the witness’s] statement was clearly prejudicial and alluded to her belief that Appellant played a role in [her nephew’s] murder and disappearance. Second, no admonition could have cured this statement, even if a trial court had intervened and attempted to curb the statement’s effect on the jury.” Id., 231 S.W.3d at 652. Accordingly, we held that a mistrial was warranted.
Williams contends that, like the cases cited above, the instant case involves witness testimony that was undisputedly inadmissible and prejudicial. He states that the mere utterance of the words “terroristic” and “threatening” are highly prejudicial, given the 17connotation that those words have in our society today. Further, he states that, as was the case in Wing-field, the statement here was not only inadmissible, but it was incorrect and thus gave the jury a false presumption that he had previously been convicted of a crime against the murder victim. Williams asserts that Harris’s false statement un doubtedly forged a distinct impression in the minds of jurors that he had a history of terrorizing and threatening the murder victim, and that this history was so serious that charges were filed and he was convicted in a court of law.
The State responds that the circuit court did not err in denying the motion for mistrial because the testimony was not solicited by the prosecution, it was not responsive to the question asked, and the circuit court admonished the jury to disregard it, curing the error. We disagree and hold that a mistrial was warranted in this case. Further, we hold that the statement was so prejudicial, it could not be cured by an admonition to the jury.
Here, Harris testified that Williams had previously been convicted of terroristic threatening for an incident involving her mother, the murder victim. Even though there was no proof that Williams had been convicted of terroristic threatening, or that the nolle prossed charges for terroristic threatening involved an incident with the victim, the State received the benefit of the prejudicial testimony. We hold that the circuit court abused its discretion in denying Williams’s motion for mistrial. Accordingly, we reverse and remand for a new trial.
^Because we reverse and remand due to the circuit court’s failure to grant a mistrial, we need not address Williams’s cumulative-error argument. However, we will address Williams’s argument regarding the admission of a statement allegedly made by his son to law enforcement because this issue is likely to arise again on retrial.
Williams contends that the circuit court erred in admitting evidence of a statement that his son, eleven-year-old Roderenon Williams, allegedly made to law enforcement on the night of the murder. During the State’s case-in-chief, the prosecutor called Roderenon to the stand. j^Roderenon testified that he never saw or spoke to any law enforcement officers on the night of the murder. The prosecutor then asked Roderenon to read part of a statement that he allegedly gave to police. Roderenon testified that the statement did not refresh his memory; he stated that, “at the time that this was going on, I was asleep.”
The State then re-called Deputy Jonathan Byrd to the stand for the purpose of impeaching Roderenon’s testimony. He testified that he was present when Rodere-non was interviewed. Defense counsel objected, contending that the prosecutor was trying to introduce hearsay evidence and to impermissibly “collaterally impeach” Roderenon. The circuit court rejected Williams’s argument and made the following ruling:
The Court finds that the testimony by Roderenon Williams of not remembering anything that happened was sufficiently inconsistent with his prior statement given to the police. Further, the witness was given an opportunity to explain or deny the prior inconsistent statement and he did not admit having made such statement. The State may use extrinsic evidence, his prior statement under Rule 613(b) for impeachment purposes.
The circuit court admonished the jury that testimony regarding the content of Roder-enon’s statement to the police was not to be considered for the truth of the matter set forth in the statement, but that it could be considered by the jury for the purpose of judging the credibility of Roderenon.
The State then called Desha County Sheriff Jim Snyder to the stand. Sheriff Snyder testified that, on the night of the crimes, Roderenon told law enforcement that his dad had come home mad, got a shotgun and a handful of shells out of a drawer, and said he was going to kill Harris. According to Sheriff Snyder, Rodere-non said that after his father made the 11flstatement, he left the house, and Roder-enon had not seen him since. Sheriff Snyder testified that Roderenon told law enforcement the same story “multiple times.” On cross-examination, Snyder acknowledged that the author of the report of Roderenon’s statement neglected to sign it.
Williams asserts that, when the court considers the entirety of the circumstances, in addition to applicable law, it will become clear that the State’s purpose was not to introduce the statement to impeach the witness, pursuant to Rule 613(b) of the Arkansas Rules of Evidence, but to introduce the statement as substantive evidence of his guilt. Citing Roberts v. State, 278 Ark. 550, 648 S.W.2d 44 (1983), Williams contends that the admission of the statement requires reversal.
In Roberts, an eyewitness gave an un-sworn statement to the police implicating the defendant in a murder. Subsequently, the witness gave the police two additional statements, in which he admitted that the original statement was untrue. At trial, the State called the witness to the stand and impeached him with the initial statement that implicated the defendant. We held that such impeachment was “mere subterfuge” for the State’s true intention of introducing the statement as substantive evidence of the defendant’s guilt. Id. at 552, 648 S.W.2d at 46. We also determined that the “limiting instruction to the jury directing them to consider the prior inconsistent statement for impeachment only was not a sufficient safeguard.” Id. at 552, 648 S.W.2d at 46.
In a later case discussing Roberts, however, we held that Roberts was not controlling where there was no evidence that the State knew that its witness would contradict her earlier ^statements to police. See Roseby v. State, 329 Ark. 554, 953 S.W.2d 32 (1997), overruled on other grounds by MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998); see also McFerrin v. State, 344 Ark. 671, 42 S.W.3d 529 (2001); Kennedy v. State, 344 Ark. 433, 42 S.W.3d 407 (2001). The same reasoning applies in the instant case. Williams’s counsel acknowledged during oral argument before this court that there was no evidence that the State knew that, at trial, Roderenon would deny making a statement to police.
Finally, Williams contends that the admission of Roderenon’s statement that Williams stated his intent to kill Harris “was manifestly prejudicial because it constituted the only evidence heard by the jury that pertained to the Defendant’s state of mind just prior to the murder.” Williams states that the inadmissible statement was the “cornerstone” in the State’s case for capital murder, as it was evidence of premeditation and deliberation. In response, the State points out that the jury returned a general verdict of “guilty” on the capital-murder charge, and because the verdict form did not specifically indicate whether the jury convicted Williams of capital murder based on the theory that he killed the victim while intending to kill Harris, or on the theory that he killed the victim while acting with intent to kidnap Harris, he cannot prove that he was prejudiced by the evidence of Roderenon’s statement. We agree. Because a general-verdict form was used, there is no way to discern the basis of the jury’s capital-murder verdict and, thus, there is no way for this court to address Williams’s allegation of prejudice. Based on the foregoing, we hold that the circuit court did not abuse its discretion in admitting evidence of Rodere-non’s statement to law enforcement.
Reversed and remanded.
112GUNTER and WILLS, JJ., dissent.
. There was no evidence in the record that Williams had been convicted of terroristic threatening. There was evidence that a charge for terroristic threatening had been nolle prossed; however, the State was unable to identify the complainant in the case.
. After quoting an excerpt of Williams’s counsel's response to a question at oral argument, the dissent asserts that Williams’s "counsel now admits that the problem could have been cured, but for the defense’s failure to proffer his own curative instruction.” Contrary to the dissent’s statement, counsel did not admit that the prejudice would have been cured had he "proffered” his own curative instruction; moreover, counsel was not required to "proffer” an instruction, as he would in, for example, a case involving the refusal of a jury instruction. Most important, the dissent mischaracterizes what counsel said at oral argument, by omitting the remainder of his response, which is necessary to an understanding of the issue. In discussing a curative instruction, counsel stated at oral argument:
I know that the defense continued to pursue a mistrial and several pages further into the record the defense finally concedes and says I suppose, you know, an instruction that it was false and there is no evidence to support it would be good enough, Judge. And to me that is accepting the stipulation and asking the judge to then proceed with that.
Indeed, a review of the record reveals that the State offered to stipulate that Williams had not been convicted of terroristic threatening; however, the circuit court refused to instruct the jury that there had been no conviction, instead instructing the jury to disregard the testimony that Williams had been convicted of terroristic threatening. That instruction did not cure the prejudice, and, furthermore, a review of this court's precedent cited herein, Moore v. State, 323 Ark. 529, 915 S.W.2d 284 (1996); Lackey v. State, 283 Ark. 150, 671 S.W.2d 757 (1984); Wingfield v. State, 303 Ark. 291, 796 S.W.2d 574 (1990); and Green v. State, 365 Ark. 478, 231 S.W.3d 638 (2006), makes clear a mistrial was warranted in this case. These cases, each involving prejudicial testimony during the trial of a criminal defendant whose liberty was at stake, are more analogous to the instant case than the civil case, J.E. Merit Constructors, Inc. v. Cooper, 345 Ark. 136, 44 S.W.3d 336 (2001), cited by the dissent.
. Both the State and Williams state that Williams's son was nine or ten at the time of the crimes. | [
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PAUL E. DANIELSON, Justice.
11 Appellant State of Arkansas appeals from the circuit court’s order granting a motion to suppress evidence in favor of appellee Jaret Thompson. The State’s sole point on appeal is that the circuit court erred in granting Thompson’s motion to suppress evidence discovered following a canine sniff of his vehicle that was validly detained. Thompson did not file a response. We agree with the State and reverse and remand.
The record reveals the following facts. On April 9, 2009, Sergeant Chris Chap-mond, with the Hot Springs Police Drug Task Force, received a tip that Thompson was selling illegal narcotics from his truck in the parking lot of the National Park Medical Center’s emergency room. Upon arrival to the hospital, Chapmond saw the vehicle, which matched the description that he had been given leaving the parking lot. Chapmond had called fellow ^Officer Kenneth Kizer for assistance in surveillance. As Officer Kizer was leaving the Hot Springs Police Department, he spotted the truck. Officer Kizer followed the vehicle and then observed it veer left of the center line. Officer Kizer initiated a traffic stop, and as he approached the vehicle, he detected a strong odor of intoxicants emitting from the vehicle and also noticed an open container.
Officer Kizer asked Thompson to exit the vehicle for the purpose of performing field sobriety tests. At that time, Sergeant Chapmond pulled up behind Officer Kizer. As Officer Kizer was concluding the field sobriety tests, Officer Michael Jones arrived on the scene with “Nero,” the police drug dog. Sergeant Chapmond told Officer Jones that Thompson was acting suspicious and asked Jones to run Nero around Thompson’s vehicle. Officer Jones did so as Officer Kizer wrote the citation for driving left of center. Nero then gave Officer Jones a positive alert on the driver’s side door. A subsequent, on-the-spot search of Thompson’s vehicle uncovered a large amount of pseudoephed-rine.
The State charged Thompson with possession with intent to manufacture — unlawful distribution. On September 1, 2009, Thompson moved to suppress the evidence, alleging that it was seized in violation of both article 2, section 15 of the Arkansas Constitution and the Fourth Amendment to the United States Constitution. The State responded that, because Officer Kizer had probable cause to make a traffic stop, it was reasonable to stop Thompson’s vehicle under both Arkansas and federal constitutional law and that the officer’s immediate use of the canine around the vehicle and a positive alert from Nero gave him probable cause to search it.
laAfter a suppression hearing was held, the circuit court suppressed the evidence, concluding that “the sole basis for the search of the Defendant’s vehicle was the positive alert by the canine and that this alone is insufficient to provide justification for the search.” The State now appeals the circuit court’s order granting the motion to suppress the evidence.
Prior to examining the merits of any state appeal, we must first determine whether it is a proper state appeal. Arkansas Rule of Appellate Procedure— Criminal 3(a)(1) provides that “[a]n interlocutory appeal on behalf of the state may be taken only from a pretrial order in a felony prosecution which (1) grants a motion under Ark. R.Crim. P[.] 16.2 to suppress seized evidence!)]” Ark. R.App. P-Crim. 3(a)(1) (2010). The rule further states:
(c) When a notice of appeal is filed pursuant to either subsection (a) or (b) of this rule, the clerk of the court in which the prosecution sought to be appealed took place shall immediately cause a transcript of the trial record to be made and transmitted to the attorney general, or delivered to the prosecuting attorney, to be by him delivered to the attorney general. If the attorney general, on inspecting the trial record, is satisfied that error has been committed to the prejudice of the state, and that the correct and uniform administration of the criminal law requires review by the Supreme Court, he may take the appeal by filing the transcript of the trial record with the clerk of the Supreme Court within sixty (60) days after the filing of the notice of appeal.
Ark. R.App. P.-Crim. 3(c) (emphasis added).
As this court has frequently observed, there is a significant and inherent difference between appeals brought by criminal defendants and those brought on behalf of the State. See State v. Jones, 369 Ark. 195, 252 S.W.3d 119 (2007) (citing State v. Nichols, 364 Ark. 1, 216 S.W.3d 114 (2005)). The former is a matter of right, whereas the latter is not derived from the Constitution, nor is it a matter of right, but is granted pursuant to Ark. R.App. P.-Crim. |43. See id. We accept appeals by the State when our holding would be important to the correct and uniform administration of the criminal law. See id.
As a matter of practice, this court has only taken appeals which are narrow in scope and involve the interpretation of law. See Jones, supra (citing State v. Pittman, 360 Ark. 273, 200 S.W.3d 893 (2005)). We do not permit State appeals merely to demonstrate the fact that the circuit court erred. See id. Thus, where an appeal does not present an issue of interpretation of the criminal rules with widespread ramifications, this court has held that such an appeal does not involve the correct and uniform administration of the law. See id. Similarly, where the resolution of the issue on appeal turns on the facts unique to the case or involves a mixed question of law and fact, the appeal is not one requiring interpretation of our criminal rules with widespread ramifications, and the matter is not appealable by the State. See id. Finally, where an appeal raises an issue of the application, not interpretation, of a criminal rule or statutory provision, it does not involve the correct and uniform administration of the criminal law and is not appealable by the State under Rule 3. See id.
The issue presented in the instant case is whether the circuit court erroneously concluded that a positive alert from a canine sniff standing alone does not constitute probable cause to subsequently search a vehicle. We conclude that this appeal does present an issue involving the interpretation of our criminal rules and will have widespread ramifications because it will provide guidance to our law enforcement officers and our courts as to the law in our state when faced with similar circumstances in the future. See State v. Mancia-Sandoval, 2010 Ark. 134, 361 S.W.3d 835. Therefore, we accept this case as a proper state appeal.
|sThe State argues that the circuit court erred in suppressing the evidence because a warrantless search of a lawfully detained vehicle, based on a positive alert by a reliable police dog, violates neither the United States nor the Arkansas Constitution. On review of a suppression challenge, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the circuit court. See id.
In the instant case, the circuit court did not find that the stop of Thompson’s vehicle was invalid. Additionally, there was no finding that the officers erred in conducting the dog sniff of the vehicle. The circuit court simply found that after the positive alert by the canine, there was not an additional reason to search Thompson’s vehicle. However, such a requirement does not exist. While this court has never decided if a positive alert following a dog sniff, standing alone, provides probable cause to search, we have guidance from the federal courts and our own court of appeals.
In Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001), the dog sniff was bolstered by other facts; however, this court noted the following:
According to the Eighth Circuit Court of Appeals, a dog sniff that results in an alert on a container, car, or other item, standing alone, gives an officer probable cause to believe that there are drugs within the item, if the dog is reliable. United States v. Sundby, 186 F.3d 873 (8th Cir.1999); United States v. Bloomfield, 40 F.3d 910 (8th Cir.1994). See also Newton v. State, 73 Ark. App. 285, 43 S.W.3d 170 (2001). In Sundby, the Eighth Circuit stated:
A dog’s positive indication alone is enough to establish probable cause for the presence of a controlled substance if the dog is reliable. To establish the dog’s reliability, the affidavit need only Rstate the dog has been trained and certified to detect drugs. An affidavit need not give a detailed account of the dog’s track record or education.
Sundby, 186 F.3d at 876 (cases omitted). Laime, 347 Ark. at 159, 60 S.W.3d at 476. The holding from Sundby as to dog sniffs is still cited by the Eighth Circuit. See United States v. Olivera-Mendez, 484 F.3d 505 (8th Cir.2007).
Similarly, our court of appeals has held the following:
[W]hen an officer has a police dog at his immediate disposal, a motorist’s detention may be briefly extended for a canine sniff of the vehicle in the absence of reasonable suspicion without violating the Fourth Amendment. Once a canine dog alerts, an officer has probable cause to suspect the presence of illegal contraband.
Miller v. State, 81 Ark. App. 401, 411-12, 102 S.W.3d 896, 902 (2003) (citing Willoughby v. State, 76 Ark. App. 329, 65 S.W.3d 453 (2002)). See also Newton v. State, supra.
Here, Officer Jones testified as to Nero’s reliability and confirmed that his training records had been maintained. There was no challenge to the dog’s reliability. Therefore, once Nero gave a positive alert on Thompson’s vehicle, there was probable cause for the officers to conduct a search, and there was no violation of the Fourth Amendment.
|7For the foregoing reason, the circuit court erred in finding that the officers needed an additional reason to search Thompson’s vehicle and erred by granting Thompson’s motion to suppress. We, therefore, reverse and remand.
Reversed and remanded.
CORBIN, J., not participating.
. While Thompson relied on both the United States Constitution and the Arkansas Constitution in his motion to suppress, the circuit court did not specify the basis for its ruling. Additionally, the instant case is not the appropriate case to examine whether the search- and-seizure language of article 2, section 15, of the Arkansas Constitution should be interpreted to provide greater protection than the federal interpretation of the Fourth Amendment as that issue was not sufficiently developed on appeal and full adversarial development is lacking. See Williams v. Johnson Custom Homes, 374 Ark. 457, 288 S.W.3d 607 (2008) (citing Drummond v. State, 320 Ark. 385, 897 S.W.2d 553 (1995)). See also State v. Harris, 372 Ark. 492, 277 S.W.3d 568 (2008). We note, however, that this court has previously declined to extend our holding in State v. Brown, 356 Ark. 460, 156 S.W.3d 722 (2004), to the search of a vehicle. See Welch v. State, 364 Ark. 324, 219 S.W.3d 156 (2005). | [
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ELANA CUNNINGHAM WILLS, Justice.
liThis appeal arises from the decision of the Carroll County Circuit Court, on its own motion, to dismiss the complaint filed by appellant Pat Matsukis and others challenging the validity and propriety of the installation of parking meters in downtown Eureka Springs.
In June of 2009, the circuit boards of the electronic parking pay station near the Basin Spring Bath House malfunctioned. Several weeks later, the circuit board in a second pay station next to the courthouse malfunctioned as well. Because the circuit boards were obsolete, it was not possible to repair them. Eureka Springs Police Chief Earl Hyatt recommended to the Eureka Springs City Council that the pay stations be replaced with individual parking meters, reasoning that if one meter malfunctioned, the city would only lose the revenue from one parking space, rather than the revenue from an entire lot. Chief |2Hyatt also received a quote from POM, Inc., a parking-meter supplier, for the cost of installing new parking meters.
On July 1, 2009, the City Council met and passed Ordinance No. 2106, which was captioned “An Ordinance Waiving the Requirements for Competitive Bidding on Acquiring Coin-Operated Parking Meters for the City of Eureka Springs, Arkansas.” Noting that the City had authorized and approved a capital expenditure in its 2009 Capital Budget for the purchase of coin-operated parking meters, the City Council found that compliance with notice and bidding requirements for the meters was not feasible or practical because of the amount of lost city revenue. The ordinance then provided as follows:
Section 1. The requirements for competitive bidding in the acquisition of coin-operated parking meters and support posts shall hereby be waived.
Section 2. The quote from POM [for] $289.63 for single head unit and $619.14 for the double-head per unit, plus tax, handling and additional charges for support posts is and shall hereby be accepted.
Section 3. That the City Council for the City of Eureka Springs, AR, authorizes the Chief of Police to spend up to $30,000 from the City’s Capital Reserve Funds.
Section 4. All Ordinances and Resolutions, and parts thereof, in conflict with this Ordinance are hereby repealed to the extent of such conflict. In the event any one or more of the provisions contained in this Ordinance shall for any reason be held by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the remaining provisions of this Ordinance, and this Ordinance shall be construed as if such invalid, illegal or unenforceable provision or provisions had never been contained herein.
Section 5. EMERGENCY CLAUSE. The City Council of the City of Eureka Springs, AR finds that because it is in the best interests and financial health of the citizens of Eureka Springs [to] purchase these coin-operated meters to avoid a | scontinued loss of parking revenue for the City, that an emergency exists and therefore this ordinance shall go into full force and effect immediately upon its passage.
After the passage of Ordinance No. 2106, nineteen referendum petitions were submitted to the City Clerk-Treasurer, Mary Jean Sell. The petitions called for a special election to refer the ordinance to the people. On August 26, 2009, Sell certified that the petitions contained the requisite number of signatures and sent a letter to Pat Matsukis stating that she would present the letter of certification and proposed ordinance calling for the special election to the City Council at its September 14, 2009 meeting. At that meeting, however, the City Council determined that Ordinance No. 2106 was an administrative action and thus voted not to call for a special election.
On November 12, 2009, Pat Matsukis, Karen Linblad, Rae Hahn, Lany Balance, and Charlie Wurmnest (“Appellants”) filed a petition and complaint in Carroll County Circuit Court. The complaint, which sought declaratory and injunctive relief, as well as a writ of mandamus, alleged that Ordinance No. 2106 was passed in violation of Arkansas Code Annotated section 14-57-502 (Repl.1998). In addition, the complaint asserted that, because more than the required number of registered voters had signed the referendum petitions, a special election should have been called. Thus, the complaint asked the circuit court to issue a declaratory judgment that the plaintiffs were entitled to have the matter submitted to the |4voters of Eureka Springs. In addition, the complaint alleged that the parking meters were installed within the historical district without having complied with the proper Historic District Commission guidelines, permits, and approvals.
Eureka Springs Mayor Dani Joy and the City of Eureka Springs filed their answer on December 7, 2009; the remaining defendants, who are members of the Eureka Springs City Council, as well as Eureka Springs City Clerk Mary Jean Sell, filed their answer on December 30, 2009. (The defendants are hereinafter referred to collectively as “Appellees.”) Appellees’ answers were identical and generally denied any wrongdoing. In addition, while Appel-lees admitted that the referendum petitions contained the requisite number of signatures, they denied that the circuit court should issue an order calling for an election on the matter. Finally, Appellees generally asserted — although without elaboration — the affirmative defenses of failing to state a claim upon which relief could be granted; statutes of limitation; immunity; lack of standing, mootness, and collateral estoppel; failure to exhaust administrative remedies; estoppel and laches; and “all other affirmative defenses contained in Rule 8 of the Arkansas Rules of Civil Procedure.”
The circuit court scheduled a hearing on January 22, 2010. At that time, the court gave the parties five days to file amendments to their pleadings and to submit briefs to the court on any of the issues that were presented. The court then set the case for a second hearing in ten days. On January 27, 2010, Appellants filed an amended complaint, raising four specific causes of action. First, the complaint sought relief based on the City Council’s | ¡¡failure to set the parking-meter issue for an election despite the referendum petition’s having contained the requisite number of signatures. Second, the complaint sought injunctive relief and a declaratory judgment based upon the City’s alleged failure to comply with the Eureka Springs Historic District Commission’s planning guidelines. Third, the complaint alleged that Ordinance No. 2106 violated Arkansas law because it contained an emergency clause. Finally, the fourth cause of action stated that Ordinance No. 2106 was not necessary for the public peace, health, and safety and, therefore, both the ordinance and its emergency clause were invalid.
In addition to their amended complaint, Appellants also filed a trial brief on February 5, 2010. Appellees did not file an answer to the amended complaint, but filed a trial brief on February 5, 2010. Attached to Appellees’ brief were numerous exhibits, including the affidavit of Police Chief Earl Hyatt; portions of Eureka Springs’ Municipal Code; the minutes of the City Council meeting at which the council voted to pass Ordinance No. 2106; minutes of the City Council meeting at which it was determined that Ordinance No. 2106 was an administrative action and thus not subject to referendum; various previous ordinances pertaining to parking meters; and a copy of the City’s Historic District Guidelines for Design Review.
The circuit court held a hearing on the matter on February 12, 2010, pursuant to a scheduling order entered on January 28, 2010. At the outset of the hearing, the court stated that it had reviewed the briefs that had been submitted and asked whether counsel wished | fito make additional arguments or to stand on the motions and briefs. Counsel for Appellants stated that he did not think there were “any new motions out there.” The court then noted that Appellants had asked for a declaratory judgment and asked whether counsel wished to make further arguments. Counsel replied that Appellees’ counsel had provided copies of some older ordinances regarding the installation of parking meters, but suggested that he was not sure that that issue was “[ripe] for decision at this point in time.”
After hearing arguments of counsel, the court announced that “there are numerous issues within the case that are strictly matters of law” and that it had not “found anything I think should go to trial.” Thus, the trial court concluded that the Appellants’ petition for injunctive relief and for relief on the referendum were without merit, and the court dismissed the complaint. When asked on whose motion the dismissal was being entered, the court stated, “I’m doing it on my own” because it found “this case to be without merit.”
On February 28, 2010, the circuit court entered an order of dismissal. The court first stated that, “under Arkansas Rule of Civil Procedure 41, the court cannot dismiss ‘sua sponte’ unless it first gives notice to the parties that the motion will be dismissed, but that does not preclude a dismissal pursuant to Rule 12(b)(6) for a factually deficient complaint.” The court stated that it was “treating]” the Appel-lees’ collective answer as “a motion under Rule 12(b)(6)” and further noted that it was “on [Appellants’] amended complaint that the court enters its findings of fact and conclusions of law.” After making various findings of fact and conclusions of law, the court found that the complaint was without merit and was |7dismissed pursuant to Rule 12(b)(6) for failing to state facts upon which relief could be granted.
Appellants filed a notice of appeal on February 19, 2010, and an amended notice of appeal on March 10, 2010, after the court entered its order on February 23. On appeal, they challenge both the procedural propriety of the circuit court’s dismissal and the underlying merits of that decision.
In their first point on appeal, Appellants urge that the circuit court lacked authority to enter a sua sponte order of dismissal pursuant to Ark. R. Civ. P. 12(b)(6) where Appellees never filed a motion seeking such a dismissal. Appellants urge that the trial court’s action resulted in an “ambush” of the plaintiffs with an untimely and improper dismissal of their entire case, all with absolutely no advance notice whatsoever of any intent to do so. Appellees, citing Hackelton v. Malloy, 364 Ark. 469, 221 S.W.3d 353 (2006), state that both their original answers and their trial brief operated as motions to dismiss and that the trial court gave both sides the opportunity to brief all issues and be heard at the hearing. Appellees further contend that, to the extent the court’s order constituted a grant of summary judgment, it was proper, as both parties had an opportunity to present their arguments and evidence.
As discussed above, Appellees filed an answer to Appellants’ initial complaint; in that answer, they generally asserted that the complaint failed to state facts upon which relief could be granted. Ap-pellees never filed a motion to dismiss, however, nor did they ever file an 18answer to the amended complaint. As the trial court acknowledged in its February 23 order, its decision to dismiss the complaint was made sua sponte.
Despite the fact that the court asserted that it was dismissing the complaint pursuant to Rule 12(b)(6), the order specifically stated that the decision was “based upon the pleadings, exhibits, and arguments of counsel.” Indeed, the order directly references evidence contained in the exhibits attached to Appellees’ trial brief. For example, the court referred to the various Eureka Springs ordinances authorizing the Mayor to purchase and install parking meters, as well as Police Chief Hyatt’s affidavit. It is well settled that when a circuit court considers matters outside the pleadings, the appellate court will treat a motion to dismiss as one for summary judgment. See Ark. R. Civ. P. 12(b); Morgan v. Turner, 2010 Ark. 245, 368 S.W.3d 888; Koch v. Adams, 2010 Ark. 131, 361 S.W.3d 817; Fegans v. Norris, 351 Ark. 200, 89 S.W.3d 919 (2002).
Thus, the circuit court here sua sponte granted summary judgment in favor of Appellees without the Appellees’ having filed a motion requesting such relief. In Rogers v. Lamb, 347 Ark. 102, 60 S.W.3d 456 (2001), this court held that the circuit court erred in settling a case in favor of the plaintiff in the absence of any party’s filing of a motion to |9dismiss or a motion for summary judgment. In that case, the plaintiff, Lamb, filed a petition for ejectment against the defendant, Rogers, who filed an answer and a counterclaim against Lamb. The circuit court held a preliminary hearing and received briefs from the parties, and it then, sua sponte, entered an order resolving the merits of the case in Lamb’s favor. On appeal, Rogers argued among other things that the court erred in rendering its decision in the absence of an appropriate motion filed by either party. Rogers, 347 Ark. at 103, 60 S.W.3d at 457.
This court agreed, noting that the trial court’s sua sponte ruling deprived the parties of any opportunity to present evidence or witness testimony in support of their positions. In addition, the court stated, “since Lamb neither filed a motion for summary judgment, a motion to dismiss, or a motion for judgment on the pleadings, there was no resulting burden on Rogers to ‘meet proof with proof,’ nor was there any impetus for the court to decide the case sua sponte.” Id. at 104, 60 S.W.3d at 457. The court also noted that Lamb failed to cite any argument or authority that would support the trial court’s granting summary judgment in the absence of a proper motion pursuant to Arkansas Rule of Civil Procedure 56. Id. Further, in the absence of evidence on the issues that were contested by the parties, the circuit court’s order “was based upon speculation and conjecture” and simply assumed the existence of material facts. Id. at 104, 60 S.W.3d at 458. This failure to provide the non-prevailing party with an opportunity to meet proof with proof constituted reversible error. Id. at 105, 60 S.W.3d at 458.
lioSimilarly, in 2200 Commercial Street Warehousing, L.L.C. v. Hastings Development Co., Inc., 98 Ark. App. 316, 255 S.W.3d 488 (2007), the court of appeals reversed the circuit court’s sua sponte granting of summary judgment to the defendant. There, the plaintiff filed a motion for summary judgment to which the defendant responded that material questions of fact remained; the defendant did not file its own motion for summary judgment. Nonetheless, the court entered an order granting summary judgment in favor of the defendant. As in Rogers v. Lamb, supra, the court of appeals held that the sua sponte grant of summary judgment deprived the plaintiff of the opportunity to meet proof with proof and demonstrate that issues of material fact remained to be decided. 2200 Commercial St. Warehousing, 98 Ark. App. at 319, 255 S.W.3d at 490. See also Nichols v. Culotches Bay Navigation Rights Committee, L.L.C., 2009 Ark. App. 365, 309 S.W.3d 218 (reversible error to grant summary judgment sue sponte in the absence of a motion for summary judgment, motion to dismiss, or motion for judgment on the pleadings).
In the instant case, the circuit court did what was held to be reversible error in Rogers, 2200 Commercial St. Warehousing, and Nichols. Nonetheless, Appellees contend that, because they raised Rule 12(b)(6) in the affirmative-defenses portion of their original answer, the trial court had a proper basis for dismissing Appellants’ complaint. This notion, however, ignores the fact that Appellees never filed an answer to the amended complaint and thus did not re-plead this defense. Appellees also argue that their trial brief “acted” as a motion to dismiss such that no additional answer was required. They cite no authority in support of this novel | nproposition, however, and it is well settled that this court will not consider arguments advanced without citation to convincing authority. See State of La. v. Joint Pipeline Grp., 2010 Ark. 374, 373 S.W.3d 292; Shotzman v. Berumen, 363 Ark. 215, 213 S.W.3d 13 (2005).
In addition, the circuit court did not grant a motion to dismiss. Because it considered matters outside of the pleadings, it converted the matter to a summary-judgment proceeding. At the January 22, 2010 hearing, the court informed the parties that they would have five days to file amended pleadings and briefs on the matters raised in the amended complaint. At the subsequent hearing, the court engaged in a discussion with the parties about the history of Eureka Springs’ ordinances authorizing the mayor to install parking meters and repeatedly referred to Appellees’ exhibits that had been filed along with their trial brief. The court afforded no opportunity for Appellants to submit any testimony or evidence to contradict or rebut the exhibits submitted by Appellees. Instead, it dismissed the complaint on its own motion.
Although the court stated that it felt the issues before it were “strictly matters of law,” we nonetheless conclude that its actions were in error because it converted the matter to a summary-judgment proceeding without putting Appellants on notice that they would need to meet Appel-lees’ proof with their own. See Rogers v. Lamb, 347 Ark. at 104, 60 S.W.3d at 457. Given notice of the court’s intentions and an opportunity to rebut Appellees’ proof with evidence of their own, Appellants might have been able to submit additional evidence that | ^indicated that there remained a genuine issue of material fact. The circuit court’s actions foreclosed that possibility, however, and thus constituted reversible error.
Reversed and remanded.
. Section 14-57-502 provides that "[a]ny municipal ordinance authorizing the installation of parking meters shall not be subject to an emergency clause. Nothing in this subchap-ter shall limit the rights of the people under the Initiated and Referendum Amendment to the Constitution of the State of Arkansas.”
. Because the amended complaint did not adopt and incorporate the original complaint, we note that the original complaint was superseded by the amended complaint. See Farmers Union Mut. Ins. Co. v. Robertson, 2010 Ark. 241, 370 S.W.3d 179; Edward J. DeBartolo Corp. v. Cartwright, 323 Ark. 573, 916 S.W.2d 114 (1996). At the February 12, 2010 hearing, the court asked counsel for Appellees whether they had filed a responsive pleading to the amended complaint. Counsel replied that he had one drafted, but was "waiting," apparently to see what the court was going to do at the hearing.
. Because we reverse on Appellants' first argument, it is unnecessary to address the remaining arguments raised in the appeal. | [
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ROBERT J. GLADWIN, Judge.
| Appellant Ramondo Edwards appeals his conviction by a Union County jury on charges of three counts of delivering a controlled substance, a Class Y felony, in violation of Arkansas Code Annotated section 5-64^101 (Repl.2006), for which he was sentenced as a habitual offender to sixty-years’ imprisonment in the Arkansas Department of Correction, with seven of those years suspended. On appeal, he challenges the sufficiency of the evidence to support the conviction, specifically arguing that the State failed to prove that he purposely delivered crack cocaine. We affirm.
On April 30, 2007, Ms. Ronnie Hopkins, a confidential informant, was sent by local law-enforcement officers to 622 West First Street in El Dorado, Arkansas, to purchase crack cocaine from appellant. The controlled buy was organized after officers received numerous reports from various citizens that appellant was selling controlled substances from the | ¿residence. Ms. Hopkins worked with officers and bought thirty dollars’ worth of crack cocaine while wearing a concealed camera and a covert recorder. Similar controlled buys using the same procedures were conducted on May 1, 2007, and on May 3, 2007. Each time, the contraband was sent to the Arkansas State Crime Lab for testing, and each time the substance resulted in a positive result for crack cocaine.
An information was filed on October 24, 2007, charging appellant with three counts of delivering crack cocaine for the controlled buys on April 30, May 1, and May 3, 2007, and charging him as a habitual offender with four prior convictions. An amended information was filed on November 14, 2008.
A jury trial was held on November 18, 2008, and the first witness for the State was Captain Larry Weaver of the El Dora-do Police Department. He testified as to his training and experience in the narcotics division as well as the procedures used when working with a confidential informant. He explained that he had worked with Ms. Hopkins on various cases, who initially cooperated to “work off her charge” and later received compensation for her services. He indicated that Ms. Hopkins had assisted in at least fifteen convictions. Captain Weaver described the procedures utilized in the three separate controlled buys, including pre- and post-buy searches of the informant.
Sergeant Jeff Stinson testified that he had also worked with Ms. Hopkins regarding the controlled buys in this case. Sergeant Stinson corroborated Captain Weaver’s testimony and further explained the procedures utilized in handling and testing the controlled substances | ¡¡purchased by Ms. Hopkins from appellant. He also discussed the recording process used during the controlled buys, acknowledging that they did not maintain visual contact with the confidential informant during the actual buy, but rather relied on the recordings made of the event. Sergeant Stinson also described the scene when he and the SWAT team converged on the residence.
Ms. Hopkins testified next and explained her criminal history and experience in working as a confidential informant. She testified as to the details of the three separate controlled buys and identified appellant as the person from whom she purchased the crack cocaine on each of the three occasions.
Nick Dawson, a drug chemist from the Arkansas State Crime Lab, testified for the State regarding the results of testing performed on the substances obtained by Ms. Hopkins during the three controlled buys. Each tested positive for cocaine base and was characterized as larger than a typical rock of cocaine but still less than a full gram. Lisa Wilcox, a forensic chemist for the Arkansas State Crime Lab, also testified regarding the testing procedures performed on the substances as well as chain of custody and packaging.
The State rested, and appellant’s counsel made directed verdict motions on each of the three counts, stating each time that the State had failed to offer substantial evidence to show that appellant purposely delivered crack cocaine. The circuit court denied the motions.
The defense called Steven Smith to testify. Mr. Smith explained that he was currently an inmate at the Arkansas Department of Correction serving time for delivering a controlled |4substance. He testified that he knew appellant and that appellant used to hang out at the residence on West First Street where Mr. Smith sold drugs. Mr. Smith testified that appellant never sold drugs and that he specifically did not sell drugs on the three days in question.
The defense then rested, and the motions for directed verdict were renewed on the same grounds and were again denied. Appellant was found guilty of all three counts and sentenced as previously set forth. A judgment and commitment order was entered on December 10, 2008, and appellant filed a timely notice of appeal on December 18, 2008. This appeal followed.
Standard of Review
When a defendant challenges the sufficiency of the evidence that led to a conviction, the evidence is viewed in the light most favorable to the State. White v. State, 98 Ark. App. 366, 255 S.W.3d 881 (2007). Only evidence supporting the verdict will be considered. Id. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Graham v. State, 365 Ark. 274, 229 S.W.3d 30 (2006). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. Credibility determinations are made by the trier of fact, who is free to believe the prosecution’s version of events rather than the defendant’s. See Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (2001).
Discussion
[.^Arkansas Code Annotated section 5-64A01 (Repl.2006) provides that it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver a controlled substance. Section 5-2-203(b) (Repl.2006) specifies that if a statute defining an offense does not prescribe a culpable mental state, a culpable mental state is nonetheless required and is established only if a person acts purposely, knowingly, or recklessly. Section 5-2-202 (Repl.2006) provides in relevant part:
(1) “Purposely.” A person acts purposely with respect to his or her conduct or a result of his or her conduct when it is the person’s conscious object to engage in conduct of that nature or to cause the result;
(2) “Knowingly.” A person acts knowingly with respect to:
(A) The person’s conduct or the attendant circumstances when he or she is aware that his or her conduct is of that nature or that the attendant circumstances exist; or
(B) A result of the person’s conduct when he or she is aware that it is practically certain that his or her conduct will cause the result;
(3) “Recklessly.”
(A) A person acts recklessly with respect to attendant circumstances or a result of his or her conduct when the person consciously disregards a substantial and unjustifiable risk that the attendant circumstances exist or the result will occur.
(B) The risk must be of a nature and degree that disregard of the risk constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.
Appellant maintains that, in order to sustain the charges of delivery of a controlled substance, the State had to prove that appellant formed the specific intent to sell crack cocaine for money. He urges that the State had to show that he purposely or knowingly delivered crack cocaine to a police informant and claims that he never formed the necessary | (¡criminal intent during the alleged deliveries. Appellant acknowledges that his actions make him appear guilty and concedes that the State’s evidence clearly shows that he was present when the confidential informant purchased the crack cocaine on the three occasions. However, he maintains that Mr. Smith’s testimony established that appellant did not purposely or knowingly deliver crack cocaine on the dates in question. Accordingly, he submits that the State failed to offer substantial proof to support his convictions and that the circuit court erred in denying his motions for directed verdict.
The State notes that appellant, in citing section 5-2-203, argues that the State was required to prove that he purposely or knowingly delivered crack cocaine to a police informant. The State questions why appellant omitted “recklessly” from his formulation of the mental-state element of the case and what “specific intent” he asserts the State must prove. Additionally, the State asserts that appellant makes this confusing argument without citation to supporting authority, and appellate courts do not consider assignments of error presented without either authority or convincing argument. See Strong v. State, 372 Ark. 404, 277 S.W.3d 159 (2008). The State contends that, based upon that alone, appellant’s convictions could be affirmed.
We agree with the State that the evidence supporting appellant’s convictions is substantial. Captain Weaver testified that his office received multiple calls indicating that appellant was engaged in selling controlled, substances. He explained his supervision over the controlled buys of crack cocaine from appellant to confidential informant Ronnie Hopkins. [7Sergeant Stinson reiterated much of the information provided by Captain Weaver, including that Ms. Hopkins had been a reliable informant for their office on several prior cases.
Evidence was submitted that the substances purchased by Ms. Hopkins from appellant tested positive for crack cocaine. Additional evidence included still photographs and video footage taken by hidden cameras showing the transactions between Ms. Hopkins and appellant. Ms. Hopkins also testified at the trial, explaining her working relationship with the El Dorado Police Department Narcotics Division. She explained how she worked with Captain Weaver and Sergeant Stinson to make the controlled buys from appellant and confirmed the accuracy of the video footage of the controlled buys presented by the State.
Arkansas courts have consistently made clear that a presumption exists that a person intends the natural and probable consequences of his acts. White, supra (affirming a conviction for possession of cocaine and possession with intent to use drug paraphernalia). Like all factual questions, the question of a defendant’s intent or state of mind is for the trier of fact to decide, based upon the evidence presented. Id. Additionally, the trier of fact is allowed to draw upon common knowledge and experience to infer the intent from the circumstances. Id.
Evidence was presented that indicates on three occasions Ms. Hopkins assisted Captain Weaver and Sergeant Stinson in making controlled buys of crack cocaine from appellant. On each occasion, Ms. Hopkins gave appellant thirty dollars in cash in exchange for a corresponding amount of crack cocaine from appellant. All three exchanges were captured in still photographs and video footage. The jury had substantial, if not overwhelming, evidence from which to infer with reasonable certainty from the circumstances that appellant [¡/‘formed the necessary criminal intent” to sell Ms. Hopkins crack cocaine during those encounters. Accordingly, we affirm.
Affirmed.
MARSHALL and BAKER, JJ., agree. | [
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