Datasets:

aidos-lab

/

arkansas-embeddings-binary-mixed-bread-large

like 0

Follow

aidos-lab 4

Frank Holt, Justice. Appellee was granted a divorce from appellant on her counter-claim of general indignities. She was awarded permanent alimony, attorney’s fees and a statutory interest in appellant’s real and personal property pursuant to Ark. Stat. Ann. §§ 34-1211 and 34:1214 (Repl. 1962). This appeal, by present counsel, is from the final decree. Appellant contends these statutes are unconstitutional. We first consider the validity of § 34-1211, which authorizes the permanent awards made here. Before doing so, the question of appellant’s standing, which appellee raises, must be resolved. To have standing to challenge the constitutionality of a statute, it must be unconstitutional as applied to the litigant. Carter and Burkhead v. State, 255 Ark. 225, 500 S.W. 2d 368 (1973). It is well established that a litigant can question the validity of a statute “when and insofar as it is being, or is about to be, applied to his disadvantage . . .” Block v. Allen, 241 Ark. 970, 411 S.W. 2d 21 (1967). Here appellant was required to pay appellee temporary maintenance and attorney’s fees during the pendency of this action, which awards were made permanent by the first decree. Clearly appellant has standing to challenge the constitutionality of § 34-1211 since he was and continues to be financially obligated to the appellee under the decree rendered pursuant to this statute. By seeking a ruling from the chancellor as to its constitutionality, as applied to him, he properly raised the constitutional issue in the trial court. In support of his argument that § 34-1211 is a gender-based classification and therefore unconstitutional, appellant relies upon Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102, 59 L. Ed. 2d 306 (1979); and Hatcher v. Hatcher, 265 Ark. 681, 580 S.W. 2d 475 (1979). Here appellant correctly points out that in Hatcher we held § 34-1210, which authorizes temporary maintenance and attorney’s fees for the wife, unconstitutional as being violative of equal protection rights citing Orr. In Orr Alabama statutes, similar to ours, were declared unconstitutional. We hold Ark. Stat. Ann. § 34-1211 (Repl. 1962), which is undisputedly gender-based, likewise uncon stitutional. We deem it appropriate to observe, however, that Orr and Hatcher were rendered subsequent to the trial of this case or during the pendency of this appeal. Appellant next contends that § 34-1214, which pertains to a wife’s property rights upon divorce, is unconstitutional, because it is also gender-based in its classification. This issue is raised for the first time on appeal and therefore we cannot consider it. Hatcher v. Hatcher, supra. Appellant next contends that the chancery court erred in granting appellee a statutory interest in appellant’s Ford Motor Company and Honeywell retirement benefits. The decree provides that appellee receive a one-third interest in the retirement benefits with Ford but does not mention the Honeywell benefits. Pension benefits which are vested but not currently due and payable are not personal property. Knopf v. Knopf, 264 Ark. 946, 576 S.W. 2d 193 (1979). Here on the record before us, it is not demonstrated that any retirement benefits are currently due and payable. Finally, appellant contends that Act 705 of our 1979 General Assembly cannot be applied to sustain the chancellor’s order. This act was enacted during the pendency of this appeal and amended §§ 34-1210, 34-1211, 34-1213, and 34-1214 by making them gender-neutral rather than gender-based. Substantive rights are clearly affected by this act and the statute cannot be retroactively applied absent clear legislative intent to that effect. Chism v. Phelps, 228 Ark. 936, 311 S.W. 2d 297 (1958). Here no emergency clause was enacted and neither is there express language regarding retroactive applicability. The act, therefore, is prospective in its application. Since the statute, § 34-1211, in effect when the chancellor’s order was entered, is unconstitutional and since Act 705, subsequent to the order, is prospective in its application, no statutory law exists to apply on remand. Even so, it has been suggested that we delineate some guidelines for the chancellors in cases now pending with respect to alimony upon rendition of the decree of divorce between the Orr decision and the effective date of Act 705 of 1979. It is true that we recognized in Hatcher that “[d]ivorce and the incidental rights, responsibilities and liabilities of a divorce, are purely statutory.” At common law, there was no power to award alimony. 1 Nelson, Divorce & Annulment (2d. Ed.) 5, § 1.02, and Am. Jur. 2d, Divorce & Separation, § 534. Ark. Stat. Ann. § 34-1211 (Repl. 1962), which gives authority to the chancellor to award alimony, has been in effect for approximately 150 years. The pronouncement of Orr and Hatcher, as indicated, requires the invalidation of this statute. To meet the obvious requirements of Orr that this type statute be neutral and not gender-based, our legislature, within a month, enacted Act 705 of 1979. Even though our legislature acted expeditiously to correct the hiatus created by Orr, a void of statutory law has existed during the interim between Orr and the effective date of Act 705 of 1979 affecting this and perhaps numerous other cases. In this unusual situation, we think the broad power of equity should be allowed to fashion a remedy to meet the demonstrated needs of divorced spouses in order to prevent harsh and inequitable results. In Whitaker & Co. v. Sewer Improvement Dist. No. 1 of Dardanelle, Ark., 229 Ark. 697, 318 S.W. 2d 831 (1958), we said: “A court of equity should be as alert to afford redress as the ingenuity of man is to cause situations to develop which call for redress. ’ ’ As further indication of the inherent powers of equity to do substantial justice between divorced parties, we said in Conner v. Conner, 192 Ark. 289, 91 S.W. 2d 260 (1936): Notwithstanding the fact that the wife may be the guilty spouse, the trial court, in the exercise of a sound discretion, if the facts and circumstances in the particular case warrant it, may allow her alimony, attorney’s fee, and costs. This power is inherent in the court, although not provided by statute. This court said in the case of Prior v. Prior, 88 Ark. 302, 114 S.W. 700 that: ‘Whether dependent upon enlarged powers conferred by the statute or not, we think it is settled that a court has the power to allow alimony to a wife against whom a decree for divorce is granted on account of her misconduct.’ In the circumstances, we hold, with respect to this and other cases pending during this brief void of statutory law, that a chancellor may, within the exercise of inherent power and sound discretion, award alimony to the wife or husband as is justified by the facts and circumstances. Here, as indicated, the chancellor’s award of alimony cannot be sustained pursuant to § 34-1211 nor Act 7Ó5 of 1979. However, it is well recognized that we review chancery cases de novo on appeal and affirm when it appears correct from the record as a whole even though the chancellor has based his decision upon the wrong reason. Morgan v. Downs, 245 Ark. 328, 432 S.W. 2d 454 (1968). Affirmed. Hickman and Stroud, JJ., concur. Fogleman, C.J., and Mays, J., concur in part and dissent in part.

George Howard, Jr., Judge. The issue tendered by appellant, Potlatch Corporation, for review is whether the trial court’s action in quieting title to eleven and one-half acres of land in appellees, Jerry D. Hannegan and Mary F. Hannegan, is supported by a preponderance of the evidence. Jerry and Mary Hannegan’s petition to quiet title, in material part, is as follows: That the plaintiffs acquired title to said lands by exercising open, notorious and continuous possession of said property along with their predecessors in title since the year 1922 and have occupied said lands adversely . . . since that date. Potlatch, among other things, denied that petitioners were entitled to the requested relief and asserted: [T]he possession alleged by Plaintiffs was begun by permission . . . and no notice that this permissive holding had changed to adverse holding was ever brought to Defendant or its predecessors in title prior to the spring of 1978. The trial court found: 1. The old original fence along the western boundary of the property of the Plaintiffs was erected as a division line between the properties and was extended in 1921 to its present location; that Plaintiffs were in actual possession of the entire disputed area which was adverse to Defendant’s predecessor in title; such possession continued many years past the statutory period and ripened into ownership in Plaintiffs’ predecessor in title before this Defendant acquired its property. 2. That Defendant has not exercised ownership of the disputed area inside the fence line since its acquisition of the property, has had actual notice of the fence line since the early 1960’s and has acquiesced in the fence as a division line. While a proceeding on appeal from a chancery court is reviewed de novo, it is well recognized that appellate courts will affirm where the holding of the trial court is supported by a preponderance of the evidence. After carefully reviewing the record, we are persuaded that the findings of the Calhoun County Chancery Court are not against the preponderance of the evidence. We, therefore, affirm the decision. In order for a claimant to establish ownership to property by adverse possession, he has the burden of proof to show, by a preponderance of the evidence, possession for seven years; that possession was actual, open, notorious, continuous, hostile, exclusive and accompanied with an intent to hold against the true owner. Strieker v. Britt, 203 Ark. 197. Moreover, the hostile character of possession is determined by the occupant’s own views, actions and intentions and not those of his adversary. Frank Hannegan, an uncle of petitioner, who was born and reared on the property, testified that Millie Hannegan, his mother, took possession of the property in 1914 when she acquired a warranty deed from C. B. Ivy to an eighty acre tract of land that is adjacent to the property in question; that an ancient fence partially enclosed the land in question and in 1921 the fence was extended to enclose completely the eleven and one-half acres; that between 1914 and 1928, the Hannegans cultivated row crops on the land and that he personally plowed the ground with a mule and Georgia stock; that timber representatives of Freeman Lumber Company, one of appellant’s predecessors, would stay in the Hannegan home while checking timber for their employer and that these representatives observed the cultivation and enclosure of the land. Jerry D. Hannegan testified that he was born on the property, but did not live on it continuously; that between 1946 and 1965 the land was farmed and used as a grazing area for cattle intermittently; that after his father’s death in 1965, he rented the property to Neal Reynolds; that he maintained the fence, kept the ground bush-hogged, and moved back on the place during the spring of 1974; that there has never been any dispute or controversy about the location of the fence. John R. Todd and Hugh Booth who had known the Hannegan Farm since the middle 1960’s testified that the property was known as the Hannegan Place. Clifton Wright testified that he had known the Hannegan Farm since 1919 and the property was in cultivation at that time; that he visited the Hannegan Place in 1944 and the fence was intact; and that the fence was regarded as the boundary line. Anthony Woods, who was called as a witness by appellant, testified: Q. All right, Mr. Woods, while you were out there working, do you know who really owned — who actually owned — the land that you were working on? A. Well, nothing more only just what they told me that it belonged to Mr. Roy Hannegan. That’s what he said was his place. That’s all I ever knowed. Allison Means, a witness called by appellant, testified that he made a survey of the area in 1960; that he discovered the fence encroachment and reported the matter to Rusty Powell, forester for appellant. The thrust of appellant’s argument for reversal is that appellees’ predecessors’ entry was permissive and that no notice of adverse holding was communicated to it until the spring of 1978; and that appellant has paid all of the ad valorem taxes due. The only testimony offered to establish permissive possession is a purported policy of lumber companies in the area during the 1920’s and 30’s authorizing their neighbors to cut firewood and make use of certain open lands for farming purposes. Frank Hannegan acknowledged his awareness of such a policy, but stated emphatically that he knew of no policy arrangements with reference to the lands, in question. Giving this testimony whatever weight it deserves, we are persuaded that it falls short in establishing that appellees’ possession is permissive in scope. Moreover, payment of taxes is not essential to establish a claim of title by adverse possession to improved and enclosed lands where claimant and his predecessors are in actual possession. Affirmed. This appeal was originally lodged in the Arkansas Supreme Court, but was transferred to this Court under Rule 29(3) of the Rules of the Arkansas Supreme Court.

Carretón Harris, Chief Justice. Edward Page, appellant herein, employee of Phillips Construction Company, was allegedly injured on March 26, 1966, when he stepped upon a roofing nail while working on a construction job. The general contractor in charge of constructing a building for Ark-Mo Power Company in Blytheville, was Phillips Construction Company. Boyd-Bilt, Inc.., appellee herein, had no connection with Phillips, but, according to a complaint filed by Page against this company, appellee had allegedly purchased a dwelling located on the work site, and had agreed to move the dwelling and clear the site in order for Phillips to proceed with construction of the office building. The complaint asserted that, in tearing down the garage next to the dwelling, agents, servants, and employees of appellee had been negligent in allowing nails and other dangerous objects to be spread and scattered about the premises upon which Page was working, in disregard for the safety of other persons rightfully working upon said premises; that appellee was further negligent in failing to clean up or “police” the area in which Phillips employees were working. Personal injuries were alleged as a direct result of appellee’s negligence, and damages were sought in the amount of $50,000.00. An answer was filed by Boyd-Bilt, Inc., admitting that it was a corporation, but denying all other allegations as to negligence, injury, and damages. The answer was subsequently amended to assert that, if plaintiff received an injury, it was caused by someone other than appellee; that Page assumed the risk of his injury, knowing the situation, and realizing that he could be injured. On trial, at the conclusion of appellant’s testimony, appellee moved for a directed verdict, which motion was granted. From the judgment accordingly entered, appellant brings this appeal. For reversal, it is simply asserted that the court erred in directing the verdict, since there was sufficient evidence offered by appellant to warrant submission of the case to the jury. We first point out that, since we are dealing with a directed verdict, we must take that view of the evidence which is most favorable to the party against whom the verdict is directed, and, if there is any substantial evidence tending to establish an issue in his favor, it is error for the court to take the case from the jury. In testing where there is substantial evidence, the testimony and all reasonable inferences deducible therefrom must be viewed in the light most favorable to the party against whom the verdict is directed, and, if there is any conflict in the evidence, or where the evidence is not in dispute, but is in such state that fair-minded men might draw different conclusions therefrom, it is error to direct. a verdict. Huffman Wholesale Supply Company v. Terry, 240 Ark. 399, 399 S.W. 2d 658. Page, 49 years of age, testified that he was a carpenter, and, at the time of the accident, was employed by Phillips Construction Company on the Ark-Mo job in Blytheville. Just prior to sustaining the injury, Page, with another employee, Mode Sickles, had gone to the Park Street side of the construction site to pick up some steel reinforcing rods. This was not a normal job for Page and Sickles, but other laborers were busy endeavoring to complete the digging of the basement before it rained. In returning, they used a different route, one they had not used before, because the shorter route was muddy. The job of carrying the rods required two men, with Page at the front and Sickles at the rear. They passed about 15 to 20 feet from where the garage bad been torn down. The area being traversed was grassy. Page suddenly stopped, telling Sickles not to follow him, as he (Page) had stepped on a nail in a roofing shingle. Other shingles were scattered about the premises. Page said that he had not been looking at the ground, while carrying the steel, because he knew that the area had been previously cleaned up by the Phillips workers, and he was not aware that the nails and shingles were on the ground. Page took off his boot and sock, and found one spot of blood. The nail, a four-penny shingle nail, was rusty at the end. He returned to work, but was unable to report to the job the next day, and was thereafter unable to resume his employment until June 8, 1966. Page testified relative to the seriousness of his injury, and treatment received therefor, but that question is not involved on this appeal. Appellant was wearing construction boots, the sole being % to % of an inch thick. Sickles testified that he saw Page step on a shingle, pull his foot up, and that appellant then warned him, “Don’t come this way.” The witness said that he then looked over the area they were approaching, and saw shingles scattered all out in front of them. He said that Page stepped on the nail about 15 feet behind and to the rear of the location of the garage. Tillman Dill, employed by Phillips Construction Company as superintendent, testified that Page was working for him on the Ark-Mo job. Dill said that he (Dill) had complained several times about the house and garage not being cleared from the property, and he did not remember exactly when the garage was torn down; he did know that it was still standing on February 15. The witness stated that the tearing down of the garage could have been a week or week and a half before Page was injured, and he testified that his men liad cleaned up the entire area to the edge of the house and garage prior to the tearing down process. The foreman said that Page reported to him that he had stepped on a nail, and that appellant was wearing the type boots used in construction work at the time. Tt is argued by appellee that there is no showing of negligence on the part of Boyd-Bilt — or that the shingles had been placed in that particular area by employees of Boyd-Bilt. It is mentioned that the spot where the alleged injury took place was about 20 feet from the garage, and it is also pointed out that there was no showing that the garage had been covered with wooden shingles. We think appellee’s argument lacks merit. Appellant had filed certain requests for admissions, No. 4 which was admitted, being as follows: “The defendant, in tearing down this garage, removed the roofing from the top of said building.” The evidence, heretofore set out, reflects that all debris, occasioned by the moving of other buildings, had already been cleared away, which would mean that the shingles scattered over the ground near the garage were the same shingles that had composed the roof of the garage. This is certainly a logical inference; contrariwise, it would be most illogical to assume that some person carried the shingles to that location and strewed them over the ground. After all, 15 to 20 feet is not a great distance for shingles to fall when they are being removed from a roof and tossed to the ground. As far as the negligence of Boyd-Bilt is concerned, we think a jury question is made, rela tive to whether leaving exposed shingles with nails in them on premises where other people are working, constitutes negligence. Nor do we find merit in the argument relating to assumption of risk. Of course, this doctrine (which has been described as harsh) is generally applied in cases involving an employer-employee relationship, though there are some other situations that it can also apply to. Certainly, under the facts presently before the court, Page could not, as a matter of law, be held to assume the risk of a danger, that, according to his testimony, he knew nothing about. An essential element of the doctrine of assumption of risk is that the person injured had knowledge of, and appreciated, the danger incident to his undertaking. In E. L. Bruce Company v. Leake, 176 Ark. 705, 3 S.W. 2d 988, this court said: “When a servant enters into the employment of anyone, he assumes the ordinary risks and hazards which are incident to the service and this includes all those defects and dangers which are obvious and patent. He assumes all the risks which he knows to exist and all those which are open and obvious. ’ ’ In Pona v. Boulevard Arena (N.J.), 113 A. 2d 529, the court said: “It is well settled that a dismissal by the court on the ground of assumption of risk... may only be entered in the clearest case where a contrary hy pothesis is not fairly admissible. * * * The elements ‘ must be of such a prominent and decisive character as to leave no room for a difference of opinion thereof by reasonable minds.’ * * * The facts must appear clearly and convincingly, or as the necessary and exclusive inferences to be drawn by all reasonable men in the exercise of a fair and impartial judgment; otherwise the question is for the jury.” Prosser, Law of Torts, 3rd Ed. § 67, pp 453-54, citing the above case, states that assumption of risk is a jury question in all but the clearest cases. See also Haynes Drilling Corporation v. Smith, 200 Ark. 1098, 143 S.W. 2d 27, and cases cited therein. We think it apparent that, under the state of this record it cannot be said that the facts show clearly and with no contrary hypothesis fairly admissible, that Page assumed the risk of stepping on shingles with nails when he helped carry the rods through the area. Reversed and remanded. Other houses had been torn down or moved at an earlier time, and some of the Phillips workers had cleaned up remaining debris. For instance, in Bugh v. Webb, 231 Ark. 27, 328 S.W. 2d 379, Webb rode in an automobile driven by Bugh at a time when Bugh was engaged in an automobile race, commonly known as a “drag race.” During the “contest,” a pickup truck was struck by both Bugh’s car and the car engaged in the race with him, Webb receiving injuries. A jury awarded damages, but we reversed, holding that Webb, in getting into the automobile, knowing full well of the hazards of drag racing at night on a heavily traveled highway, assumed the risk of proceeding in the face of danger, and was thus barred from recovery.

Smith,. J. On June 10, 1935, J. E. Morgan, while driving a truck for the Cudahy Packing Company, collided with a sedan car driven by L. H. Rankin, and as a result of this collision Morgan was injured and Rankin was killed. Annie J. Rankin, the widow of the deceased, qualified as administratrix of her husband’s estate, and was sued in that capacity by Morgan to compensate the injury which he had received. He recovered a judgment against the estate, which was affirmed on the appeal to this court. Rankin v. Morgan, 193 Ark. 751, 102 S. W. 2d 552. The administratrix did not file a cross-complaint, and the cause went to trial on an answer alleging that Morgan was guilty of contributory negligence. The judgment recovered in that case was satisfied by payment. While that appeal was pending, and while Mrs. Rankin was still administratrix of her husband’s estate, she filed suit as widow to recover damages occasioned by loss of contributions made to her by her deceased husband against both Morgan and his employer. A demurrer was filed alleging that appellee could not maintain the action in her own right, and, on the day set for hearing the • demurrer, she elected to take a nonsuit. On March 31, 1937, the administratrix filed a final report of her administration, and on April 21, 1937, she was discharged as administratrix. On April 27, 1937, she filed this suit upon the same cause of action upon which her first suit was based. A demurrer was filed to this complaint, upon the grounds (1) that the widow has no right to sue, because there had been administration upon her husband’s estate and a personal representative capable of suing under the so-called Lord Campbell’s Act; (2) that there was a defect of parties, in that the plaintiff failed to join the next of kin as parties, and (3) that the judgment affirmed by the Supreme Court was res adjudícala of the present controversy, since it was the administratrix’s duty to have filed a cross-complaint or counterclaim in that action, for the benefit of herself as widow and next of kin. On November 23, 1937, three days before the date set for the trial, Thelma Lee Teal filed an intervention, in which she alleged that she was the only child of L. H. Rankin; that she was married and did not live with her father, and that at the time of his death he was mailing no contribution towards her support, and she prayed that judgment be rendered on her mother’s complaint for the sole use and benefit of her mother. A motion to dismiss the intervention was filed upon the ground that any cause of action which the intervener may have had was barred by the statute of limitations when the intervention was filed. This motion was overruled and exceptions duly saved. The cause proceeded to trial,.and there was a judgment in favor of the widow for her personal benefit, from which is this appeal. The answer to the question, whether the former judgment, which this court affirmed, bars the present •suit, requires a consideration of the application of certain declarations of law announced in numerous cases cited in the briefs of opposing counsel. When the wrongful act of one party results in the death of another, more than one cause of action may arise. If, as a result of the injury causing death the deceased endured conscious pain and suffering, a recovery may be had on that account, which inures to the benefit of the estate of the deceased. In addition, the heirs and dependents of the deceased may recover damages to compensate their loss. However, in prosecuting such suits the provisions of the act commonly known as Lord Campbell’s Act, which confers the right to sue in death cases, must be pursued. Sections 1277 and 1278, Pope’s Digest. In construing this act in the case of McBride v. Berman, 79 Ark. 62, 94 S. W. 913, it was said that, while the wife was not technically an “heir at law,” that phrase had been used in the statute in the broader sense of one receiving a distributive part of the recovery, and included his wife. In again construing’ this statute in the case of Law v. Wynn, 190 Ark. 1010, 83 S. W. 2d 61, it was held that the term ‘‘next of kin’’means all the children of decedent, and is not limited to children dependent on the deceased. This statute (§ 1278, Pope’s Digest) provides that “Every such action shall be brought 'by, and in the name of, the personal representatives of such deceased person, ... if there be no personal representatives then the same may be brought by the heirs at law of such person.” And in the case of Southwestern Gas & Electric Co. v. Godfrey, 178 Ark. 103, 10 S. W. 2d 894, it was said that “the right of the heirs and next of kin of the decedent to sue for damages for his wrongful death is dependent upon there being no personal representative of such decedent, and, since the complaint of the heirs and next of kin did not allege there was ho personal representative of the deceased, and did allege that J. R. Godfrey was the administrator of his estate, it did not state a cause of action as to them, and was subject to. the demurrer, which should have been sustained (citing cases). Since the suit was brought by the administrator or personal representative of the decedent, however, who had the right to recover all damages resulting from his wrongful death, no prejudice resulted from the court’s failure to sustain the demurrer, and the error was harmless.” See, also, McBride v. Berman, supra; Kansas City Southern Ry. Co. v. Henrie, 87 Ark. 443, 112 S. W. 967; Kansas City Southern Ry. Co. v. Frost, 93 Ark. 183, 124 S. W. 748; Jenkins v. Midland Valley R. R. Co., 134 Ark. 1, 203 S. W. 1; Law v. Wynn, supra; Ashcraft v. Jerome Hardwood Lbr. Co., 173 Ark. 135, 292 S. W. 386. The .subject is exhaustively annotated in the note appearing in L. R. A. 1916E, p. 112. Now, when the suit of Morgan against the estate of Rankin was brought and was tried, there was a personal representative of Rankin’s estate. The appellant herself was that person. She then had .the right to recover for herself, for the estate and for all others, any and all damage for which Morgan was responsible. She elected not to allege these damages in the suit by Morgan against the estate of which she was the administratrix, hut contented herself with the allegation that Morgan’s own negligence had contributed to his injury, and that he could not recover on that account, and this issue was decided adversely to her contention. It is true Morg-an’s employer was not a party to that suit, but it could have been made a party, as was done in this case. Morgan was, of course, a party, being the plaintiff in that action, and if there is any liability on the part of the Cudahy Packing Company, Morgan’s employer, it is under the doctrine of respon-deat superior, but Morgan’s liability was primary and personal. The Cudahy Packing Company could not be held liable unless Morgan was. negligent. It was alleged in the answer of the administratrix that Morgan was negligent, and that his negligence caused or contributed to the collision, resulting in his injury and in Rankin’s death, and that was the issue tried in the former case. It is true the administratrix made this allegation for the purpose of defeating a recovery against the estate of which she was the administratrix, and not for the purpose of recovering damages on account of the death of her intestate. But, under the facts stated, we think she did not have the right to split the action into its several parts. Morgan’s employer could have been made a party had the administratrix desired to do so, but without the Cudahy Company being a party, other parties were before the court who had the right to litigate the question of liability for the collision. The widow, as administratrix, had the right to represent, not only herself and the estate of her intestate, but all “heirs-at-law,” and to recover any damages accruing. There were no interests which she did not represent. It was said in the case of McBride v. Berman, supra, “manifestly, these statutes did not intend this splitting of the cause of action, and contemplate this multiplicity of actions for one act of negligence resulting in death. The statute (§§ 6289 and 6290, Kirby’s Digest), commonly called ‘Lord Campbell’s Act,’ intends one action to be brought for the death sued on. This action must be 'brought by the personal representative, if there be administration. If there is no administration, then the action must be brought by the heirs at law of such deceased person.” The statute (§ 1416, Pope’s Digest) provides that, “in addition to the general denial above provided for, the defendant must set out in his answer as many grounds of defense, counterclaim, or set-off, whether legal or equitable, as he shall have. Each shall be distinctly stated in a separate paragraph, and numbered. The several defenses must refer to the causes of action which they are intended to answer in a manner by which they may be intelligibly distinguished.” The widow, as administratrix of her husband’s estate, had the right, and, we think, was under the duty, of litigating, in the suit against her as administratrix, all the questions which she raised in the suit later brought for her personal benefit. If one participant in an automobile collision may, when sued by the other, waive the right to assert his own damages as a result of the collision and later sue for such damages in a separate suit we may reasonably expect two suits in many of such cases, and a more prolific and profitable field of litigation will be opened up than existed in the case of suits by guests against their hosts, before the passage of our guest statute on that subject. We think the present cause of action was barred by the former suit, and the judgment here appealed from awarding damages to appellee will be reversed, and the cause dismissed. Humphreys and Mehappy, JJ., dissent. . DoNham, J., disqualified and not participating.

Ernie E. Wright, Judge. This is an appeal by the employer from a decision of the Workers’ Compensation Commission finding claimant, Leonard Birdsong, totally and permanently disabled and awarding compensation accordingly. Appellee was 62 years of age at the time of hearing and had been in the employ of appellant for some 17 years prior to the injury. He sustained a compensable injury in the course of his work on or about June 23, 1976 while moving some steel. He felt a sting in his shoulder and the next morning was unable to move his left arm. He consulted his physician, Dr. John D. Ashley, and was referred to Dr. Richard M. Logue, an orthopedic surgeon. On March 8, 1977 Dr. Logue operated on his arm in an effort to correct the condition resulting from the injury. After the operation claimant convalesced until June 24, 1977 when he returned to work. The condition of his arm grew worse and after work on January 19,1978 the claimant quit working because of the arm injury, combined with problems with his knees. He had previously sustained a compensable scheduled injury to his left knee in 1966 while working for the same employer, resulting in an award of twenty per cent partial disability to the left leg. He thereafter developed arthritis in both knees and was treated for this condition by Dr. Ashley. The evidence before the commission includes the report of Dr. Logue, who assessed claimant’s disability from the injury as thirty per cent loss of function to the arm due to the rupture of the biceps. Dr. Ashley testified he saw the claimant on June 24, 1976 and found the claimant had a marked weakness in his left upper arm, swelling in the mid portion of the arm, and that when the muscle would contract the arm would not move. It was his conclusion the claimant had a rupture of the head of the left bicep muscle. He had occasion to treat claimant for other conditions subsequent to the corrective surgery by Dr. Ashley, the last time being incident to hospitalization of claimant in. April of 1978 for osteo-arthritic problems with his knees and other complaints. He observed the arm surgery had not been successful, and gave a written report in May, 1978, expressing the following opinion regardng the disability arising from the arm injury: He has previously suffered an industrial injury to the left leg and as a result of favoring this leg, he has developed arthritic symptoms in the right leg. As a result of this last injury to his arm and his previous leg injury interpreted in light of his over-all physical condition, I feel that Mr. Birdsong’s last injury is perhaps “the straw that broke the camel’s back” in creating a total disability situation. Dr. Ashley testified in his opinion the claimant is permanently and totally disabled and the arm injury was the final factor in creating the total disability. Claimant testified he was unable to continue his employment after january, 1978. The Workers’ Compensation Act defines disability as incapacity because of injury to earn in the same or any other employment the wages which the employee was receiving at the time of the injury. The evidence shows claimant has limited education, has worked only at manual-labor, and has no training in other fields of work. The case of Glass v. Edens, 233 Ark. 786, 346 S.W. 2d 685 (1961) rejects the theory that only clinical findings can be considered in determining disability, and points out that consideration should be given to a claimant’s age, education, experience and other matters affecting wage loss in addition to medical evidence. The evidence shows appellee was able to work after the 1966 scheduled knee injury, but there was medical evidence in addition to his own testimony that he became totally disabled to continue working after his last day of work on January 19, 1978, and that the precipitating cause was the arm injury. In Cooper Ind. Products v. Worth, 256 Ark. 394, 508 S.W. 2d 59, (1974), the court held a scheduled injury may give rise to an award of compensation for total disability under Ark. Stat. Ann. § 81-1313 (^) where the scheduled injury proves to be totally and permanently disabling. The case also holds that on appeal we must give the findings of the commission the strongest probative force in favor of the Commission’s decision. Appellant argues the opinion of Dr. Ashley should be disregarded because it went beyond assigning functional impairment. Ark. Stat. Ann. 28-1001, Rule 704 permits opinion testimony embracing an ultimate, issue to be decided by the trier of fact. The opinion of Dr. Ashley was received without objection and the factors upon which the opinion was predicated were detailed. It was proper for the commission to weigh Dr. Ashley’s testimony, along with all other evidence. The question of permanent total disability is an issue of fact and all relevant evidence bearing upon the issue should be considered. We conclude there is substantial evidence to support the findings of the commission that claimant is totally and permanently disabled as a result of the arm injury sustained in the course of employment, when the condition of his arm is considered along with the scheduled permanent disability to his leg and other physical conditions. However, the undisputed evidence shows claimant actually worked during the period from June 24, 1977 through January 19, 1978, and the evidence does not support the commission’s finding of permanent total disability as beginning prior to January 20, 1978. The commission’s award is modified to show the commencement date of permanent total disability as being January 20, 1978, and as so modified the decision of the commission is affirmed.

Frank Holt, Justice. On March 10, 1977, appellees exercised a 40 day option to purchase approximately 581 acres of land from appellant. Appellees agreed to pay a total price of $232,400. A down payment of $11,620 was made, and an installment note was executed providing that appellees would pay the balance over a 10 year period at the rate of $32,852.06 annually. The written contract was silent as to a date of possession by the appellee purchasers. They instituted this action on March 6, 1978, alleging mutual mistake of material fact as to the time of possession in the execution of the sale agreement and sought rescission of the contract and refund of the $11,620 down payment. The court found mutual mistake, which justified a rescission of the agreement and a refund of appellees’ down payment. Appellant first asserts that the chancellor erred in admitting oral testimony to vary the terms of the written contract. Although parol evidence is generally not admissible to vary the terms of a written instrument, it is admissible to show mutual mistake. See Sewell v. Umsted, 169 Ark. 1102, 278 S.W. 2d 36 (1925); Roger v. Jack Collier East Co., 257 Ark. 205, 515 S.W. 2d 205 (1974); Kansas City & M. Ry. Co. v. Smithson, 113 Ark. 305, 168 S.W. 555 (1914). Here the pleadings raised the issue of mutual mistake concerning delivery of possession and the duration of the lease encumbering the property. The court correctly held that parol evidence was admissible on the issue presented. We must agree however with appellant’s next contention that the evidence is insufficient to support a finding of mutual mistake. It is well established that we review chancery cases de novo on appeal, and we do not reverse the chancellor’s findings of fact unless contrary to the preponderance of the evidence. Here the property is used primarily as a hunting club. The appellees discussed with the appellant the purchase of his property with the intent of resale by them. During negotiations, they discussed the existence of a hunting club lease on the property. Appellees examined the property prior to execution of the sale contract. Admittedly, they knew there were tenants on the property during the hunting season and there was a lease encumbering the property. Even so, the appellees drafted the written sale contract and made no reference to the lease, its terms, or when appellees would get possession of the property. According to the appellees, this omission resulted from being assured by the appellant that the lease was to expire at the end of May, 1977, or 2 months following the date of the purchase contract. They asked to see the lease before the contract was signed. They were told initially that it was in the bank, where appellant was a director, and later that he could not find it. Appellant had asked them not to contact his tenants as he did not want them to know he was selling the property. Shortly after signing the contract, appellees learned that the lease was in force until 1982. A witness for appellees testified that he was in his office across the hall from appellees’ office and overheard a conversation on March 10, 1977, the day the contract was signed, in which appellees told appellant that they could not purchase the property unless the lease were up at the end of May, 1977; appellant told them the lease would terminate at that time; and appellant was going to write a letter to the tenants advising them to vacate. It appears that appellees had listed the property for sale, during the option period and after the contract to purchase, in local and out-of-state publications, sent prospective purchasers resumes of the hunting club facilities and represented the hunting club lease would terminate in May, 1977. Appellant’s version is that appellees examined the property with him in January, 1977. He told appellees that the existing lease on the property was in writing. He also told them that the lease was to expire in 1982, although he originally told them he wasn’t sure when the lease expired. Even though the lease did not expire until 1982, he never promised possession, except subject to the lease. He pointed out that the purchase contract itself provides that he was not obligated to give appellees a warranty deed for the property for a period of four years. Shortly after execution of the sale contract with appellees, he gave notice to the hunting club that he was cancelling its lease due to the club’s violation of certain provisions of the lease. When those notices did not prove fruitful, appellant filed suit to cancel the lease, which litigation was pending at the time of the trial of the present case. Appellees argue that the fact that the lease did not expire until 1982 prevented them from reselling the property and that it was not until they realized that appellant could not deliver possession for a number of years that they demanded rescission of the contract and their money back. Appellant responds that the argument by appellees is essentially that the lease clouded the title to the property; their argument ignores the fact that he was not obligated to give a warranty deed to appellees for four years by the written terms of the sale agreement and, thus, the property could not be sold in fee by appellees until that time. In other words, what appellees really complain about is that a third person could not take possession of the property, and, therefore, appellees cannot sell the property at this time at a profit. Appellees are experienced real estate men. They contracted to purchase the property knowing it was leased by a hunting club. They failed to mention the lease in the contract, drafted by them, its duration or any date as to delivery of possession of the property. They were buying the property for resale primarily as a hunting club. Under the very terms of the written contract, they were not to receive a warranty deed from appellant for 4 years. Also the contract provided for a 10 year payout period without the right of prepayment. It is true that they made written demand for a refund of their down payment in May and June, 1977. However, they waited for more than a year, or shortly before the annual payment was due, to file this action for rescission of the contract. Appellant was and is willing to give possession subject to the lease. Appellees admitted that the omission in the contract they drafted as to a date of possession was “foolish.” In the circumstances, we hold that the finding of the court was against the preponderance of the evidence. Reversed and remanded with directions to enter a decree not inconsistent with this opinion. Byrd, J., dissents.

Conley Byrd, Justice. Appellant Don H. Me Cien - lan appeals from a jury verdict finding that appellee Dr. James H. French was not guilty of malpractice in his treatment of McClellan’s perirectal wound. For re versal of the judgment, McClellan relies upon the following points: 1. The Court erred in permitting Dr. Buchman to give his opinion as to whether Dr. French was guilty of malpractice. 2. The Court erred in permitting defendant to propound hypothetical questions based on assumed facts which were not in evidence. The record shows that McClellan suffered his perirectal wound at Lake Ouachita while skiing. He was taken by friends to a hospital in Hot Springs where he was referred to Hr. French. Hr. French observed the wound, cleansed it but did not suture it at that time. McClellan whited in Hr. French’s waiting room for his friends who had returned to Lake Ouachita to pick up a boat and trailer. While waiting, McClellan began bleeding, the blood flowing down his leg and off the chair onto the floor. He was returned to Hr. French’s operating table where his wound was again examined. This time Hr. French sutured the wound and placed McClellan in a Hot Springs hospital for observation. McClellan was released from the hospital the next day. He states that he was released in the afternoon. Hr. French contends that he was released during the morning. Subsequent to McClellan’s release from the Hot Springs hospital, he was seen by Hr. Laurens sometime between 4:00 and 5:00 and placed in a Little Rock hospital. The allegations in the complaint were as follows: ‘ ‘ That said defendant did negligently and carelessly fail to apply with reasonable care the degree of skill and learning ordinarily possessed and used by members of his profession in good standing, engaged in the practice of medicine in the locality in which he practices or in a similar locality in diagnosing and treating him; that as a result of such negligence and carelessness on the part of the de fendant a piece of rotten, contaminated and jagged wood remained in plaintiff’s peritoneal cavity causing peritonitis, infection and putrification, requiring an exploratory laparotomy as well as a colostomy, causing great conscious pain and suffering and permanent partial disability.” • POINT 1. One of tlie pivotal, issues concerning the alleged malpractice of Dr. French was whether he should have packed the would open to permit drainage as testified to by Dr. Laurens or whether it should have been sutured as testified to b3r Dr. French. To support his position that that was the standard medical procedure, Dr. French called Dr. Joseph Buchman who testified as follows: Q. Is bleeding dangerous to the patient? A. Certainly is. Q. Should be controlled? A. It has to be controlled. Q. Then I take it, doctor, in your opinion Dr. French was not guilty of malpractice in suturing'? mil price: Your Honor, this is a question ... the court;... THE WITNESS: A. That is standard medical procedure in this eommunit3r to suture a bleeding wound. Q. In your opinion Dr. French was not guilty of malpractice in suturing this wound? A. He was not. McClellan argues that Dr. Buchmau should not have been permitted to testify as to whether it was “malpractice” since this was the ultimate question for the jury. He cites as authority Johnston v. Order of United Commercial Travelers, 182 Ark. 964, 33 S.W. 2d 375 (1930). During oral argument counsel cited other authorities such as Hoener v. Koch, 84 Ill. 408 (1877). In the Johnston case the issue was whether Sam C. Johnston had committed suicide. In holding that it was prejudicial error for a doctor to express an opinion that Johnston died as a result of suicide, we said: “Opposing counsel have briefed the question of the admissibility of an expert opinion that the death in question resulted from wounds self-inflicted with suicidal intent, and there appears to be several authorities holding such testimony competent. Miller v. State, 9 Okla. Or. 255, 131 Pac. 717, L.R.A. 1915A, 1088. We think, however, that the better rule excludes this expert testimony. This is the point in issue, the decisive fact in the case, the question which the jury was impaneled to decide, and is an inference which one person might draw as well as another. Of course, the trained physician and surgeon might know the depth and character and consequences of cuts and wounds and the manner in which they might have been inflicted, which the lay witness might not have, and testimony of this character may be given by the expert, but, when it has been given, the jury, and not the witness, should say with what intent the wounds were inflicted.” In the Hoener case, the Supreme Court of Illinois held that it was proper for an expert to give his opinion as to whether or not the treatment the plaintiff received was proper, but that it was error for him to give his opinion as to whether, from all the evidence in the case, the doctor was guilty of malpractice. However, in the case of Dorr, Gray & Johnston v. Headstream, 173 Ark. 1104, 295 S.W. 16 (1927), we said: “Appellant’s next contention for a reversal of the judgment is that the trial court erred in allowing appellee’s witnesses, Doctors Ruff and Hill, to state that certain alleged facts constituted negligence on the part of appellants. They were permitted to testify that it would be negligence for an X-ray technician or practitioner to turn an X-ray of 4 milliamperes voltage on a patient for twenty or thirty minutes while absent from the room. The purpose for introducing expert testimony is to get the judgment or conclusion of the witness based upon facts assumed to be true. Expert witnesses could not answer a hypothetical question otherwise than by expressing an opinion or announcing a conclusion. We can see no difference in saying that certain acts or omissions constitute negligence in the treatment of a disease and saying that the acts hypothetically detailed show improper treatment. The court did not err in letting the two expert witnesses testify that, in their opinion, it constituted negligence for appellant to turn an X-ray on appellee of the voltage described for twenty or thirty minutes during the absence of the operator of the machine from the room. This court stated in the case of Durfee v. Dorr, 131 Ark. 376, 190 S.W. 376: “ ‘Objection is made by appellant also to the action of the court in permitting practicing physicians, who qualified as experts, to testify as to the character of attention a patient should receive in a hospital. We think this evidence was competent, as it related to a subject upon which the average juror would have no information or experience upon which he would be in position to formulate an intelligent conclusion unless he based his conclusion upon the opinion of one qualified to speak as an expert.’ ” "\Ye find nothing in the Johnston case contrary to our holding in the Headstream case. The difference between the two cases is this — in determining whether one committed suicide there is involved an element of intent, usually a matter of inference from the testimony which one person is as qualified to draw as another. On the other hand, in a malpractice case the testimony ordinarily relates to a subject upon which the average juror would have no information or experience and upon which he would not be in a position to formulate an intelligent conclusion unless he does it upon the testimony of one qualified to speak on the subject. Since Dr. Buchman’s answer to the question of whether Dr. French was guilty of malpractice shows that Dr. Buchman used and understood the word malpractice in its connotation of ‘ ‘ standard medical procedure in the community”, we find no error in the use of the term malpractice. POINT 2. ASSUMED FACTS.' One of the controversal issues in the trial of this case was the time when McClellan was discharged from the Hot Springs hospital — i.e., whether in the morning or in the afternoon. In coirtending that the trial court erred in permitting Dr. French to propound hypothetical questions based on assumed facts which were not in evidence, appellant relies upon Die following proceedings: Q. How do you tell when a foreign object sets up an infection, doctor? A. You simply have to watch the patient and see what happens. Q. And this takes time? A. Times time; yes, sir. Q. This doesn’t happen in a matter overnight or a lew hours? A. No, sir. Q. All right, Dr. Buchman, assuming these same facts to he true as already asked you, let’s add the further, the further facts. I want you to assume in addition, doctor, that Mr. McClellan was not toxic nor did his wound reveal any evidence of infection at the time of his discharge from the hospital in Hot Springs. Assuming that he was discharged sometime during the morning of the day after his admission to the hospital at Hot Springs, I want you to further assume that a surgeon in Little Bock examined Mr. McClellan at around 4:00 to 5:00 o’clock that afternoon and that in this surgeon ’s opinion Mr. McClellan was toxic, and that his wound did reveal clinical evidence of infection at the time of the examination here in. Little Bock. Now, doctor, assuming all of these facts to he true, do you have an opinion as to how quickly a patient may become toxic, his symptoms may reveal he is toxic? MR. HOWELL : NOW . . . MR. ELDREDGE: Q. I am not through, and how quickly a wound may reveal clinical evidence of infection from that point where it did not reveal clinical evidence of infection, just answer my question yes or no to give Mr. Howell a chance to make an objection, if you have an opinion. A. Yes, I do. MR. HOWELL; Your Honor ... THE COURT; . . . MR. ELDREDGE; Tliauk you, your Honor. Q. Now, let’s see, doctor where were we. T asked you whether or not based on those assumed facts which have already been shown, or will be shown in evidence, whether or not... the court:' . . . May I interrupt you just once more, Mr. Eldredge, and I am not clear and I am certainly not trying to suggest to the jury what the facts are, it seems to me that you gentlemen by referring to some record that you have in — before you, could determine whether or not your question as to the patient’s discharge at Hot Springs was in the morning or afternoon. That could be clarified. MR. ELDREDGE; Your Honor, please, the test would be when Hr. French last examined the patient and assume, the, assumed fact urns he examined him in the morninrj before his discharge. Tf it wasn’t I meant for it to be. 7 will a,mend m// question. [Emphasis ours]. the court; All right. MR. ELDREDGE; Q. All right, doctor, here we go. Do you have an opinion as to how quickly a patient can be examined and he non-toxic to being examined and being toxic; can be examined as far as his wound is concerned and have no clinical evidence of infection and being examined and have clinical evidence of infection? A. Well, that can all take place in a matter of hours, three, four, five, something like that; depends entirely on the bacteria and upon the post of the patient and some bacteria. grows much faster. You will have to remember that bacteria for the body multiplies 2, 4, 6, 8, 10. I mean 2, 4, 8, 16 aud 32. That’s the wajr they divide and they multiply very rapidly, if they are in any real good environment.” Appellant contends that Dr. Buchman was erroneously permitted to assume that plaintiff was discharged in the morning and that the discharge of appellant from the hospital in the morning was not sustained by the record. We need not decide whether there is any evidence in the record to support the assumed fact that appellant was discharged from the hospital in the morning because as we read the record that assumed fact was changed to have the doctor assume that the man was examined by Dr. French in the morning. After the correction there was no further objection by appellant. In Wheeler, Adm’x. v. Delco Ben, 237 Ark. 55, 371 S.W. 2d 130 (1963), we said: “While appellee’s counsel was propounding the hypothetical question appellant’s counsel objected, stating: ‘Mr. Lindsey says there is no evidence of contusion to the chest area and I beg to differ there is evidence.’ Thereupon appellee’s counsel stated: ‘Let me rephrase that and eliminate that...’ Since no objection was made to the hypothetical question when rephrased, we find no merit in this contention. We cannot consider an objection to a hypothetical question when raised for the first time on appeal.. ” For the reasons indicated we find the judgment must be affirmed. Jonhs, J., dissents. J. Fred Jones, Justice. I do not agree with the majority in this case. In the days when strychnine poisoning was diagnosed as “locked bowels” and treated by administration of additional strychnine in some localities, (Sneed v. State, 159 Ark. 65, 255 S.W. 895), perhaps medical doctors in a malpractice case were properly held only to that degree of skill and learning ordinarily possessed and used by members of the profession in good standing engaged in the practice of medicine in that locality. In those days of patent medicines and home remedies; when bleeding was stopped by witchcraft or the application of soot and cobweb, perhaps a medical expert was the only one competent to say what was, and what was not, medical malpractice. It is my opinion in this day of nationwide Blue (Voss-Blue Shield, Medicare and sterile hospitals, and in this day of medical specialization and long internships, and closed circuit television, the same degree of skill and learning should apply in all localities and negligence in medical malpractice cases should in nowise be measured by the medical practice in the particular community where the doctor practices. In this enlightened age, when the importance of sanitation is a matter of common knowledge and the results of contamination in a closed or open wound are well known, it should not require the conclusion of a medical expert for a jury to determine whether a particular procedure in probing, cleansing, disinfecting, suturing and treating a wound, constitutes malpractice. Dr. Buchman was permitted to testify that Dr. French was not guilty of malpractice in suturing this wound. (Emphasis supplied.) Under the majority opinion, a jury was not necessary in this case at all. Dr. Buchman was permitted to give the answer the jury was empaneled to find. If Dr. Buchman had found malpractice, a jury would have only been necessary in fixing damage, if any. The evidence is undisputed that the appellant sustained a deep and severe puncture wound by falling or sinking down onto a sharp underwater object. The evidence is undisputed that the wound was more than a finger length in depth and actually extended into the peritoneal cavity. The evidence is undisputed that upon a second examination of the wound by Dr. French, the wound was closed with sutures sufficient to stop bleeding, and although the appellant was hospitalized by Dr. French, the full depth of the wound was never probed or ascertained and a half inch piece of wood was left deep within the wound. If we can logically assume that Dr. French obtained a history of how and where the injury occurred, then common sense would dictate the probability that the offending instrument was a highly contaminated wooden object, and that a residue from that object would be left in the wound. It is my opinion that it was for the jury to say, under proper instructions, whether the suturing of this wound constituted malpractice under all of the evidence in this case. I would reverse and remand for a new trial. The propriety of limiting medical standards to a particular community is not an issue in this case.

G-riffiN Smith, C. J. The Stout Lumber Company sold certain lands in Calhoun county, retaining varying interests in the mineral rights. The tax assessor extended assessments against such mineral rights, the taxes amounting in the aggregate to $892.14. Over objections of the Lumber Company assessments were made, al though the company furnished the assessor a list of descriptions. M. P. Morton, manager of appellant company’s land department, testified that shortly after April 10,1936, he received a letter from the assessor regarding the prop- ■ erty; that other letters followed, and that there were personal contacts. October 23, 1936, the descriptive lists were sent in, but they were not acted upon at the assessor’s office -.until the Board of Equalization had adjourned. Appellant-contends there was no authority October 23rd to make the assessments; that inclosed with the descriptive lists was its letter disavowing an intent to assess ; that from April until October 23rd the assessor took no action, although deeds were a matter of record in the county; that when notified of the assessments there was ■no opportunity to be heard thereon; that in fact appellant did not know'what had'been done until the collector supplied a list of the Company’s taxes, in the spring of 1937. Suit was brought to restrain the collector from returning the property delinquent in 1937 under the assessments of 1936; to enjoin the county clerk from advertising such delinquencies, and to restrain the collector from selling the mineral rights. The chancellor refused to issue the orders, and the Lumber Company has appealed. Appellant contends (1) that the manner of assessing the property is violative of art. 2, § 8, of the Constitution of Arkansas, and that it violates the due process clause, Fourteenth Amendment to the Federal Constitution. (2) That the assessments violate art. 16, 5, of the State Constitution. (3) That the court erred- in refusing to hear testimony offered by appellant to show that the mineral rights had no actual value at the time assessed. Section 13666 of Pope’s Digest, with respect to property omitted from the assessment rolls for any cause, makes it the duty of the assessor to prepare a special list or assessment thereof and file the same with the county clerk, if such omission is discovered before the collector closes his books for-collection of taxes for the year in which such property was due to have been assessed, and the county clerk “ shall thereupon place the same upon the tax books and extend the taxes and penalty thereon for the year.” Appellant contends it was the duty of the assessor to complete' his rolls between the tenth of April and the third Monday in August as to all real and personal property not assessed by or on behalf of the owner between the first Monday in January and the tenth of April; that having failed in this duty, the assessor could not make' the assessments at a period so advance'd in the assessment calendar as to automatically deprive á taxpayer of his right to be heard with respect to valuations or contested ownership. ' Although appellant, in its brief, insists that the assessor was availed of facilities of the public records to make the assessments, without requiring that descriptive lists be supplied, the witness Morton, in testifying to conversations had with members of the Equalization Board, said: “There had been no assessments made [October 23rd]. I knew the assessor could not do it. There wasn’t any way in the world for him'to do it unless I gave him the lists. . . . I'could have refused to furnish them and [the assessments] would never have gone on the books.” From this testimony it seems that appellant thought that’--by withholding the list's it could circumvent assess ments; but Morton, having in the course of his correspondence with the assessor promised to supply the lists, eventually did so; but at a time and in circumstances apparently sufficient to prevent taxation for the current yéar. Attention is directed to Central of Georgia Railroad Company v. Wright, 207 U. S. 127, 28 S. Ct. 47, 52 L. Ed. 134, 12 Ann. Cas. 463, where the Supreme Court of .the United States, in rejecting the construction placed upon a Georgia tax statute, said: ‘ ‘ The system provided- in Georgia by the statutes of the state as construed by its highest court requires of the taxpayer that he return all his property, whether its liability is fairly contestable or not, upon pain of an ex parte valuation against which there is no relief in the tax proceedings or in the courts except in those cases where fraud or corruption can be shown in the action of the assessing officers. . . . We feel constrained to the conclusion that this system does not afford that due process of law which adjudges upon notice and opportunity to be heard which it was the intention of the Fourteenth Amendment to protect against impairment by state action.” It is not necessary in the instant .case to decide whether the assessment statute, if invoked in the manner complained of by appellant, would be violative of the Fourteenth Amendment and other constitutional provisions to which attention is called. It is our view that appellant was not deprived of its day in court.' True it is that the assessment Avas not made until after October 23rd; but efforts Avere being constantly exerted by the assessor to secure co-operation. Appellant, no doubt honestly, took the position that the interests Avere not assessable. Yet, during the entire period of correspondence, Morton was informed that the Board of Equalization entertained a different view. Under the law the mineral rights, if severed from the fee, should have been declared, even though appellant regarded them as of no value. Section 13652, Pope’s Digest. Although denying that he Avent before the Equalization Board to discuss the assessment of mineral rights, Morton said: “Q. Did you'discuss the matter with the Board? A. Yes, sir — with the distinct' understanding they Avere not in session. I had written the Equalization Board, asking for an opportunity to present another matter. In my remarks on this matter to the members of the Board I made it very clear to them that I wasn’t talking to them as a Board, but as individuals. Q. Then, as I get it, while the Equalization Board was in session, and while you were with them to present another matter, you did discuss Avith them at that time the question of the assessment of these mineral interests. A. That is true. . . . I knew the members of the Board and thought I could talk to them as individuals. . . . The discussion with the members was while the Board was in session. . . . There had been no assessment made at that time.” In its brief appellant says: “Again, it appears from the evidence that no assessment was made against the undivided interests in mineral rights owned by appellant where they amounted to less than 50 per cent. In fact, no bona fide effort was made to assess these small interests, no matter by whom held. If the 50 per cent, undivided interest owned by the Stout Lumber Company was worth 25c per acre, lesser interests owned by them and other people were worth something. They should have been assessed in the same proportion that they bore to the value of the fee. ’ ’ In his letter of September 11 to the assessor, Morton said: “I find that the work of getting up a list of our mineral holdings in Calhoun county is much bigger than I anticipated, and it will be some time yet before I can furnish you with the list. . . . There are some tracts of land in which pur mineral interest is negligible. We own as low as one-sixteenth in some lands. In some we own one-eighth, and in some, fifteen per cent. I do not believe you want me to furnish you a list of these small fractional interests. ’ ’ Appellant is in no position to complain that the fractional interests were not assessed, and to urge that fo£ this reason there is lack of uniformity; nor was there a lack of uniformity within constitutional meaning. There was no allegation in the complaint, or in either of the amendments, that the assessment statute contravened the due process clause of the Federal Constitution. Appellant assumes that, because the Equalization Board had finally adjourned when the assessments were made, its right of redress was gone. This is not correct. There was the right, by certiorari from the circuit court directed to the county clerk, to have the record brought up for review and correction. Section 2865, Pope’s Digest. Affirmed.

Marian F. Penix, Judge. This case was appealed to the Arkansas Supreme Court and by that court assigned to the Arkansas Court of Appeals pursuant to Arkansas Supreme Court Rule 29(3). The question in this case is whether there is sufficient evidence to rebut the presumption that a will in the possession of or accessible to the testator was revoked by the testator if the will cannot be produced at his death. Lee Moss died in March 1977. His survivors include his widow, Clementine Moss, the defendant and appellee, and a daughter, Nancy Moss Wharton, the plaintiff and appellant. The widow seeks to establish that an unexecuted copy dated January 10,1949, located in the office of decedent’s attorney is proof the will was executed and not subsequently revoked. The daughter denies the unexecuted copy is the actual will and protests establishing it as a lost will. The probate judge ruled the document to be the decedent’s will. The daughter appeals. Ark. Stat. Ann. § 60-304 (1971) provides: No will of any testator shall be allowed to be proved as a lost or destroyed will, unless the same shall be proved to have been in existence at the time of the death of the testator, or be shown to have been fraudulently destroyed in the lifetime of the testator; nor unless its provisions be clearly and distinctly proved by at least two (2) witnesses, a correct copy or draft being deemed equivalent to one (1) witness. In Rose v. Hunnicutt, 166 Ark. 134, 265 S.W. 651 (1924) the court held that non-production of a will raises a presumption of revocation. The court expressed the state of the law as follows: It will be presumed that a testator destroyed a will executed by him in his lifetime, with the intention of revoking same, if he retained custody thereof, or had access thereto, and if it could not be found after his death. Rose, supra. The presumption a will is revoked is two-pronged. The first hurdle for the proponent of a lost will to scale is the actual execution of the will. The widow has presented proof of the actual execution in the testimony of two disinterested parties who witnessed the execution of the will; Q, Byrum Hurst Sr., the decedent’s attorney who drew up the will and testimony of L. W. Ray who witnessed the execution of the will. We find this evidence sufficient to prove its execution. The daughter offered evidence the will copy was typed on a different typewriter from the one used by testator’s attorney during the time period the will was allegedly drawn. In studying the record, however, we hold the widow’s proof to be preponderant. However, the second test for the proponent of a lost will to meet, by a preponderance of the evidence, is the will was not in fact revoked by the testator. The widow relies upon Garrett v. Butler, 229 Ark. 653, 317 S.W. 2d 283 (1958). There the court held the burden was on appellee to overcome presumption of revocation by a preponderance only. The facts in the Garrett case are distinguishable from this one. In the Garrett case there was evidence the will had been seen to be in existence in possession of the testator not long before death. Also in Garrett there was evidence a number of people had access to the testator’s personal effects, which evidence was persuasive the will was fraudulently destroyed after death and not by the testator. In this case there is no evidence offered to suggest fraudulent destruction, nor did anyone actually see the will in the testator’s possession. The widow made inferences about her son-in-law Joe Wharton, but no direct evidence was offered. It is just as logical to infer Lee Moss revoked his will as it is the son-in-law crept into the office while Mr. Moss was in Houston and destroyed it. The record reflects no evidence the will might have been misplaced or destroyed by accident. There was ample evi dence Lee Moss, though visually impaired, was successful in business and was known to be meticulous in keeping his records. We hold the evidence sufficient to prove the will was executed by Lee Moss, but the evidence insufficient to overcome the presumption Lee Moss had revoked the will. Reversed. Hays, J. not participating.

George Rose Smith, Justice. Vera B. Simonetti and Meyer Brick were candidates for the office of justice of the peace in the Democratic primary held on May 30, 1978. On June 5 Brick was certified as the nominee by a vote of 560 to 558. On June 14 Mrs. Simonetti filed a contest, alleging that six named persons voted for Brick, that they were not residents of the precinct in which they voted, and that their votes should not be counted. Brick’s answer denied the allegations of the complaint and asserted that twenty named persons illegally voted for Mrs. Simonetti and that their votes should not be counted. At a two-day trial in November the court cast out four votes for Brick and three for Mrs. Simonet-ti; so Brick was declared the winner, 556 to 555. Mrs. Simonetti argues three points for reversal. First, the statute requires that a contest be filed within twenty days after the results are certified. Ark. Stat. Ann. § 3-1001 (Repl. 1976). On July 18, after the expiration of the twenty days, Mrs. Simonetti filed a petition for leave to amend her complaint, alleging that she had discovered that “numerous other voters” had voted illegally in the election. She did not allege the name of any such voter or that any such illegal vote had been cast for Brick. She merely sought leave to set forth additional names of persons who voted illegally. On August 26 leave to amend was denied by Judge Brown. Both sides cite our cases holding that it is within the trial court’s discretion to allow amendments during the trial that do not change the grounds of contest or unduly delay the trial. Bland v. Benton, 171 Ark. 805, 286 S.W. 976 (1926); Ferguson v. Montgomery, 148 Ark. 83, 229 S.W. 30 (1921). The appellant insists that the denial of permission to amend was an abuse of discretion. We do not think so. In the cases cited the proffered amendments appear to have stated facts asserting a cause of action. That is not true here. A complaint which does not charge that any specific illegal vote was cast fails to state a cause of action. Cowger v. Mathis, 255 Ark. 511, 501 S.W. 2d 212 (1973); McClendon v. McKeown, 230 Ark. 521, 323 S.W. 2d 542 (1959). We explained the underlying reason for the rule in Jones v. Etheridge, 242 Ark. 907, 416 S.W. 2d 306 (1967): It places no burden on contestants to require them to state the names of the voters who allegedly voted “wet” and illegally and to show that if alleged illegal votes were purged it would change the election results. Before one can in good faith contest an election, he must have knowledge of the persons who voted illegally, some knowledge of how the persons allegedly voted, and he must be able to show that if the votes were purged it would make a difference in the outcome of the election. Otherwise, an election contest would become a fishing expedition. An election by the people should not be so lightly impugned by those who only hope to find enough information to change the result of an election. In the case at bar Mrs. Simonetti’s complaint properly stated facts constituting a cause of action. The petition to amend, however, wholly failed to supply any information about the many other voters who assertedly voted illegally, nor was it alleged that the purging of their votes would have changed the result of the election. The time for filing a contest had expired. We cannot say the trial judge abused his discretion in denying the petition to amend. Second, Mrs. Simonetti argues that the trial judge erred in refusing to allow her to ask the witness George Caster how he voted. Mrs. Simonetti did not mention Caster in her verified complaint. Brick, however, alleged in his verified answer that Caster did not reside in the precinct, that he voted for Mrs. Simonetti, and that his vote should not be counted. Mrs. Simonetti, as plaintiff, called a number of witnesses. The court, ruling upon each challenged vote as the trial progressed, found that four voters, all specifically named in the complaint, had illegally voted for Brick. That put Mrs. Simonetti ahead, 558 to 556. She then rested her case. Brick called a number of witnesses, and the court found that three voters, named in the answer, had illegally voted for Mrs. Simonetti. That put Brick ahead, 556 to 555. Brick then rested his case without having called Caster, whom Brick had subpenaed, as a witness. At that point Mrs. Simonetti, over Brick’s objection, called Caster to the stand and, by questioning him, made what was ultimately ruled to be a proffer of proof that Caster had voted illegally. Judge Pearson, who was trying the case, held that he was bound by Judge Brown’s order denying leave to Mrs. Simonetti to amend her complaint. On that theory Judge Pearson withdrew his original indicated ruling that Caster had voted illegally and refused to permit counsel for Mrs. Simonetti to ask Caster how he had voted. In the circumstances the court’s ruling was right. The only verified allegation about Caster in the pleadings was Brick’s statement that Caster had illegally voted for Mrs. Simonetti. During the trial in chief Mrs. Simonetti proved her verified allegations, that four illegal voters had voted for Brick. Brick in turn proved his verified allegations, that three illegal voters had voted for Mrs. Simonetti. At that point Brick rested. He had no reason to call Caster to the stand. For the court to have allowed Mrs. Simonetti to challenge Caster’s vote would not only have allowed her to amend her complaint, contrary to Judge Brown’s earlier ruling, but also have sanctioned a fishing expidition in the guise of rebuttal testimony, because Mrs. Simonetti never at any time alleged that Caster had voted for Brick. Apparently her counsel had no idea how he voted, for there was no proffer of proof that he had voted for Brick. Finally, Mrs. Simonetti challenged the vote of C.H. Bond, III, on two grounds. First, she insists that Bond, age 20, was not a resident of the precinct on election day. This point presented an issue of fact upon which there is substantial evidence to support the trial judge’s rejection of the challenge. Bond had been living with his parents in the precinct, but about a year before the election he dropped out of college and worked for some 14 months on his father’s farm about 20 or 25 miles from the family residence. After the election he returned to college in the fall. He testified that although he slept at the farm he still had his room at his parents’ home, that all his personal effects except his work clothes were there, that he ate his meals and got his mail at his parents’ residence, and that he considered it to be his home. Bond’s testimony supports the trial court’s ruling. Second, Bond, in applying for an absentee ballot, gave “work” as the reason for his expected absence from the precinct on election day. It is argued that Bond was not unavoidably absent, as the statute contemplates, because when he left his work at about 6:00 p.m. on election day he could have driven to Marion in time to vote. Ark. Stat. Ann. § 3-903. The trial judge was not required to construe the evidence so narrowly. Bond, in applying for an absentee ballot and voting in advance of the election, could not be expected to know to the minute when he would be able to leave work and drive to Marion. His good faith is not questioned. We cannot say as a matter of law that his vote should have been rejected. We do not reach Brick’s cross appeal, questioning three votes for Mrs. Simonetti, because she has failed to show on direct appeal that the judgment is wrong. Affirmed. We agree. Harris, C.J., and Holt and Hickman, JJ.

Conley .Eyed, Justice. The State of Arkansas, pursuant to Ark. Stat. Ann. § 43-2720 (Repl. 1964), appeals from an order dismissing a charge of grand larceney against appellee Marlin Reeves upon the basis that Prairie County was not the proper venue. It is stipulated that all acts of appellee occurred in Pulaski County and that he was at no time present in Prairie County where the tractor was stolen — i.e., appellee Reeves only aided 'and abetted in the theft of the tractor. To sustain the dismissal appellee relies upon Art. 2, § 10 of the Constitution of Arkansas, Ark. Stat. Ann. § 43-1424 (Repl. 1964) and Green v. State, 190 Ark. 583, 79 S.W. 2d 1006 (1935). Article 2, § 10 of the Constitution provides: “In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by impartial jury of the county in which the crime shall .have been committed;...” Arkansas Stat. Ann. § 43-1424, being § 97 of chapter 45 of the Revised Statutes of 1838, provides: “An indictment against any accessory to any felony, may be found in any county where the of fense of such accessory may have been committed, notwithstanding the principal offense may have been committed in another county; and the like proceedings shall be had therein, in all respects, as if the principal offense had been committed in the same county.” In Green v. State, supra, Green was prosecuted as an accessory before the fact. We there held that under Art. 2, § 10 of the Constitution Green could only be prosecuted in a county in which the accessorial acts were committed. In doing so we relied upon State v. Chapin, 17 Ark. 561 (1856). In the Chapin ease we held that a citizen of Ohio could not be prosecuted in Arkansas as an accessory before the fact for the burning of a boat at Helena in Phillips County. In so doing, however, we said: “Again, if a person absent from the State, commits a crime here, through or by means of an innocent instrument or agent, it seems that the law would regard him as personally present, and hold him responsible for the offense. As, for example, if the defendant had fired the Martha Washington through the agency of an idiot. Foster’s Crown Law 349; 1 Chit. Crim. Law 191; Wheat. Crim. Law 115. Or where one utters forged notes through an innocent agent. People v. Rathburn, 21 Wend. Rep. 509. Or obtains money by false pretenses, through such agency. People v. Adams, 3 Denio 190. Or sends poison to another through a letter, intending to poison him, and succeeds. Queen v. Garrett, 22 Eng. Law and Eq. Rep.; People v. Rathburn, ubi sup. 540. Again, it seems, that in misdemeanors, where there are no accessories, but all are regarded as principios who, in any manner, participate in the commission of the crime, if a person in one State procure the commission of a crime of that grade in another State, through even a guilty agent, the procurer is regarded as a principal in the offence, and as being present, in contemplation of law, where it is committed, and answerable there for the crime. Commonwealth v. Gillespie et al., 7 Serg. & Ranule 478; People v. Adams, ubi sup; Barkhamsted v. Parsons, 3 Conn. Rep. 1; The King v. Johnson, 6 East Rep. 583.” The theoretical distinction of why Chapin could not be prosecuted as an accessory before the fact on a felony charge but could be prosecuted on a misdemeanor charge is explained in Cousins v. State, 202 Ark. 500, 151 S.W. 2d 658 (1941), where we said: “If a crime covers only the conscious act of the wrongdoer, regardless of its consequences, the crime takes place and is punishable only where he acts; but, if a crime is defined so as to include some of the consequences of an act, as well as the act itself, the crime is generally regarded as having been committed where the consequences occur, regardless of where the act took place,...” See also Leflar, “The Criminal Procedure Reforms of 1936—Twenty Years After,” 11 Ark. L. Rev. 117, 131, 132 (1957). Shortly after the Green case was handed down, the people of this state, by Initiated Act No. 3 of 1936, § 25 (Ark. Stat. Ann. § 41-118 [Repl. 1964]), provided: “The distinction between principals and accessories before the fact is hereby abolished, and all accessories before the fact shall be deemed principals and punished as such ...” Therefore, as we now understand Ark. Stat. Ann. § 41-118, the distinction between accessories before the fact and principals has been abolished and the effect thereof is to chango the definition of the crime so as to include the consequences of the act, as well as the act itself. Thus, under the language of the Cousins case, the crime committed by appellee Eeeves was in Prairie County, for that is whore the consequences occurred and according to art. 2, § 10 of the Constitution that is the only county in which the trial can be held. Por the reasons herein stated we reverse and remand.

Mehaeey, J. Tlie appellants, Joe Anderson and Lucille Anderson, were convicted in tire Garland circuit court of murder in the first degree, and their punishment fixed at death. To reverse the judgment of the Garland circuit court, this appeal is prosecuted. The indictment charges that the appellants, with others, entered into a conspiracy to commit the crime of robbery upon one Eldon Cooley by unlawfully, feloni-ously, forcibly and violently, and against his consent, taking from him his money and personal property, and that in the furtherance of their common, unlawful and felonious design, and while in the pursuance of said unlawful and common purpose and design, and while in the act of perpetrating said robbery upon said Cooley, one of said defendants did unlawfully, willfully and felo-niously kill and murder the said Eldon Cooley, etc. This indictment is under § 2969 of Pope’s Digest which provides, among other things, that “willful, deliberate, malicious and premeditated killing, or which shall be committed in the perpetration of or in the attempt to perpetrate, arson, rape, robbery, burglary or larceny, shall be deemed murder in the first degree. ’ ’ Cooley was a collector employed by Stueart’s Grocery Store. The store had several branches and it was the duty and custom of Cooley to go to each of these stores in the afternoon and evening and collect their day’s receipts, together with a record of their day’s sales. This was done shortly before the stores closed in the evening. The evidence shows that appellant, Joe Anderson, and others, entered into a conspiracy to rob Cooley after he had made his collection at the last store. In furtherance of this agreement, on September 8, 1938, after Cooley had made his collections, he was held up by appellant, Joe Anderson, and Pug Dickson, and others. They took Cooley in their car, drove into the country, took the money from Cooley, required him to walk off into the woods and undress, and then shot and- killed him 'because, as some of them said, Cooley recognized one of. them. After the parties were arrested, some of the conspirators made and signed confessions. These confessions were read in evidence against the appellants, and Joe Anderson, the appellant, himself made a confession and, while he claimed that he did not actually kill Cooley, he admitted that he was only a few feet away when Pug Dickson, one of the conspirators, killed Cooley. The evidence shows that they required Cooley to take his clothes off so that he could not go immediately to a télephone, and it also shows that when one of them found that he was recognized by Cooley, Dickson shot him. Appellants, in their brief, state: “On behalf of Joe Anderson, the sole question presented by this appeal is whether or not the court erred in permitting Marion Anderson, the sheriff of Garland county, to testify concerning, the taking of a confession from Alfred ‘Pug’ Dickson and Bill Johnson, and permitting those confessions to be read tb the jury by him and admitted into evidence as exhibits to his testimony, without bringing Alfred ‘Pug’ Dickson and Bill Johnson into court to testify personally, in view of the fact that both were confined in jail within the jurisdiction of the court, and had not refused to testify.”- These confessions were not admissible as the statements of conspirators, in the absence of the defendant because they were not made during the pendency of the criminal enterprise and in furtherance of its objects. “It is thoroughly well established that when a deed is done and the criminal enterprise of the conspirators is ended, the acts or declarations of one conspirator are thereafter inadmissible against • his co-conspirator. ’ ’ Counts v. State, 120 Ark. 462, 179 S. W. 662. If these confessions, which were-introduced in evidence, had been made before the criminal enterprise ended, they would have -been admissible although made in the absence of defendant. They could not have been prejudicial in this case because the appellant, Joe Ander son, testified and admitted the conspiracy, the robbery andi the killing of Cooley. It is true he said that Cooley was shot when he was a few feet away and that he had nothing to do with the shooting, but it was done in furtherance of the conspiracy and all the conspirators were guilty the same as the one that actually did the shooting. It is well established that this court will not reverse a case for an error where the record conclusively shows that it could not have resulted in any prejudice. As to appellant, Joe Anderson, there could not possibly have been any prejudice because of this evidence, and, since his own testimony shows all the facts recited in the confessions, there was no prejudice as to Joe Anderson. As to Lucille Anderson, the court told the jury that the confession could only be used against her for the purpose of showing that she heard the statement read ■and did not deny it. The authorities are in conflict as to the admissibility of statements of this kind, but practically all agree that the entire circumstances and situation of the parties must be considered. It must, of course, be shoAvn that the person against whom it is sought to be introduced not only heard it but understood it, and that it was made under such circumstances as required her to speak. In the instant case the conspiracy had ended, the robbery had been accomplished, the money distributed, and the parties were in jail. Lucille Anderson was in jail with her husband who doubtless had and exercised some influence over her. Besides that, we think the evidence does not show that she understood the confession, and the circumstances we do not think were such as to require her to speak. The rule is stated by the Kentucky court as follows: “These may be stated as requisites to the admission of such evidence: (1) Did the person to be bound by the statement hear it? (2) Did he understand it? (3) Did he have an opportunity to express himself concerning it? (4) Was he called upon to act upon or reply to it? If the circumstances attending the statement were such as to show either that he did not, or, from whatever motive, probably did not intend to, commit himself at all on the subject, then it -would he doing violence to the fact, and serving a most unsafe practice, to allow inference to the contrary to he drawn from his silence. The accused in this instance was in custody, manacled, and being hurried to jail, charged with a heinous crime, justly arousing the indignation of the community. Surrounding him was a crowd of curious people, whose motives for being present may have 'been interpreted — not unreasonably, by one so situated as the prisoner was— as inimieable to his personal safety. Without an opportunity to consult counsel, beset by fears and misgivings, possibly stricken by a consciousness of guilt, and ignorant of a proper course to pursue, was not the natural' thing for him to do to keep silent? No part of the conversation was addressed to him. He was not asked to answer. Nor was he bound to have done so, even if asked, no matter by whom. One cannot be compelled, - when not offering himself as a witness in his own. defense, to give evidence in court tending to incriminate himself. Much less should he be compelled to do so out of court. If silence in such case is evidence of guilt, then one charged with crime must, under penalty of himself creating most damaging* evidence against himself in support of the charge, enter into a controversy of words with every idle straggler who may choose to accuse him to his face.” Merriweather v. Commonwealth, 118 Ky. 870, 82 S. W. 592, 4 Ann. Cas. 1039. “Admissions may also be implied from the acquiescence of the party. 'But acquiescence, to have the effect of an admission, must exhibit some act of the mind, and amount to voluntary demeanor or conduct of the party. And whether it is acquiescence in the conduct or in the language of others, it must plainly appear that-such conduct was fully known, or the language fully understood by the party, before any inference can be drawn from his passiveness or silence! The circumstances, too, must be not only such as afforded him an opportunity to act or to speak, but such also as would properly and naturally call for some action or reply, from men similarly situated.” People v. Courtney, 178 Mich. 137, 144 N. W. 568. The persons whose confessions were read in evidence were, at the time of the trial, in jail and no reason was given why they were not brought into court to testify where the appellant would have had an opportunity to cross-examine them. We do not think that the confessions were admissible under the circumstances. There seems to he no evidence that appellant, Lucille Anderson, understood the statement and if she did she Avould probably have thought that her husband, who was with her, Avas the proper person to ansAver if any answer was necessary. It folloAvs that the judgment against Joe Anderson must be and it is, therefore, affirmed; and the judgment against Lucille Anderson is reversed and the cause remanded for a new trial.

John I. Purtle, Justice. The trial court denied appellant’s petition for relief pursuant to Rule 37. Petitioner had alleged ineffective assistance of counsel and failure to knowingly, voluntarily, and intelligently enter a guilty plea. For his appeal from the adverse ruling on his petition the appellant urges the court erred in finding he knowingly, voluntarily, and intelligently entered a guilty plea and that the trial court failed to make statutorily required written findings of act and conclusions of law. We disagree with appellant on both arguments. Appellant had entered a guilty plea and charges of theft of property and aggravated robbery. He was sentenced to 35 years on the robbery charge and 15 years on theft. The sentences were, to be served concurrently. About two months after sentencing appellant filed his Rule 37 petition. The trial court conducted a hearing on the Rule 37 petition on October 3,1978, and overruled the petition in an order dated October 12, 1978. The appellant was represented by the public defender at the Rule 37 hearing. At the request of the court, the order, including the findings of fact and conclusions of law, was prepared by the prosecuting attorney. Appellant was granted a belated appeal from this ruling on June 18, 1979. Appellant and an accomplice were accused of using threats of physical force while taking property, having a value in excess of $100, from Thomas and Katherine Ladd on September 19, 1977. The accomplice pleaded guilty and was prepared to testify on behalf of the state at the appellant’s trial which was set for April 25, 1978. Appellant’s employed attorney, James Massie, was present and announced ready for trial on the date scheduled. Massie had worked out a plea bargain with the prosecutor and told appellant he did not feel they could beat the charges. Appellant was also charged as a habitual offender because he had at least three prior felony convictions. The retained counsel explained the minimum and maximum sentence the appellant. could receive. He also explained the charges and the possibility of conviction but left the decision to appellant as to whether he wanted to plead or go to the jury. After a conversation with his girlfriend, or wife, the appellant in formed his attorney he desired to plead guilty. His attorney informed him that the prosecution had found fingerprints at the scene which indicated the appellant was there. The court asked the appellant if he wanted to plead guilty or have a jury trial. Appellant informed the court he wanted to plead guilty. Before accepting the plea, the court explained the penalty on the aggravated robbery was 50 years to life and the penalty on theft of property was 10 to 20 years. The following questions and answers are set out verbatim: The Court: Is anybody forcing you to do this? Defendant Scott: No, sir. The Court: You’re doing it of your own free will? Defendant Scott: Yes, sir. * * * The Court: “. . . may be sentenced to an extended term of imprisonment, as follows: Not less than 50 nor more than life.” So, apparently, it makes the minimum 50. The court then examined the habitual offender act and explained it carried a penalty of 10 to 50 years or life. The court again inquired of the defendant if he wanted to plead guilty, and he replied, “Yes, sir.” The court then stated: “You’re sure you want to do that? If you want to back out and have a jury trial, I have a jury in there ready to try you.” The defendant then stated he did not actually commit the robbery. Thereupon the court admonished the appellant not to plead guilty if he were not guilty. Then for at least the third time appellant stated he wanted to enter a guilty plea. The court proceeded to sentence him to 35 years on aggravated robbery and 15 years on theft with the sentences to run concurrently. After the Rule 37 hearing the court instructed the prosecuting attorney to draw up the order denying the petition. Appellant alleges this is in violation of Rule 37.3 (c) which requires the court to make written findings of fact and conclusions of law. The evidence clearly shows the appellant knowingly, intelligently, and voluntarily entered a plea of guilty. The record of the Rule 37 hearing clearly reveals appellant stated at least three separate times that he wanted to enter a guilty plea. He admits the court and his attorney advised him of the possible penalty. Further, he knew his fingerprints were found at the scene and that the accomplice would testify against him. In view of this record and the evidence, it appears his attorney advised him well. We stated in Byler v. State, 257 Ark. 15, 513 S.W. 2d 801 (1974), that a trial court must determine whether a guilty plea was intelligently and voluntarily made and that a silent record would not satisfy such requirement. That is still the law and we reaffirm it now. Although we were dealing with what was then called Rule 1, we have the same criteria for the present Rule 37. The record is not silent here; it is replete with testimony clearly showing the appellant was informed of the possible penalty, the right to a jury trial, and the probable evidence against him. At least three times he repeated his desire to plead guilty. We think the court met the requirements of Boykin v. Alabama, 395 U.S. 238 (1969), as well as requirements of Rule 24 and our prior decisions. The second point argued by appellant is the court failed to make written findings of fact and conclusions of law because the prosecuting attorney drafted the order at the request of the court. This is such a common practice it gives us no concern whatever. When the court approved and signed the instrument he adopted it as his own. It makes no difference who drafted the order so long as the court approved it. We hold this was in compliance with requirements of the law. Affirmed. Mays, J., not participating.

Carleton Harris, Chief Justice. The Pulaski County Board of Equalization instituted action with the Public Service Commission, hereafter called PSC, sitting as the State Board of Equalization, asking that the State Equalization Board and the Assessment Coordination Division undertake a full investigation of assessment practices statewide, make a report thereon, and order a reassessment and equalization of all taxable property of all the other 74 counties, to the end that all property will be taxed equally and uniformly at its true, actual, and market value as required by the Arkansas Constitution; that the Board take such steps as might be necessary to have Act 411 of 1973 and Act 188 of 1969 declared unconstitutional. After a public hearing, in which testimony was taken, the Commission found that it had jurisdiction over the matter; that in the opinion of the At torney General, the Constitution does not require that property be assessed at current market value; that the Constitution permits the General Assembly to provide for different tax treatment for different classes of property and that the two acts, 411 of 1973 and 188 of 1969, are valid. The Commission then observed, “In- view of the Attorney General’s opinion and the presumption that statutes are constitutional, we are obligated to carry out the legislative mandate embodied in Acts 411 and 188 and leave any question as to the constitutionality of the acts for the court.” A petition for review of the order of the Commission and the Assessment Coordination Division was filed with the Pulaski County Circuit Court, Second Division, and on trial, after preparing a well-considered opinion, the trial court held and directed: Í. That Act 188 of 1969 is declared unconstitutional and the Arkansas Public Service Commission and its Assessment Coordination Division shall not comply with such Act in enforcing uniform property assessments throughout the State. 2. That Act 411 of 1973 is declared unconstitutional and the Arkansas Public Service Commission and its Assessment Coordination Division shall not comply with such Act in enforcing uniform property assessments throughout the State. 3. That all assessment practices based on other than current market value are unconstitutional and the Arkansas Public Service Commission and its Assessment Coordination Division shall not employ such practices in enforcing uniform property assessments throughout the State, except as hereinafter provided. 4. That the Arkansas Public Service Commission and its Assessment Coordination Division shall: a. Develop an implementation plan designed to bring all counties into full compliance with this Order by the end of calendar year 1984; b.Provide in such implementation plan for an orderly and equitable procedure whereby 15 counties per year shall be reassessed each year using such market value manuals and schedules developed by the Assessment Coordination Division of the Public Service Commission as are approved by the Court. This reassessment process shall begin with those counties with the greatest disparity between assessed value and market value and proceed at the rate of 15 counties per year through all seventy-five counties. The counties shall be ranked in order of disparity between assessed value and market value using the following criteria: (1) The official ratio study published January 1, 1979, by the Assessment Coordination Division of the Public Service Commission. (2) The valuation manual currently used by the county to value property. (3) The date of the most recent county-wide reassessment in the county. c. Prepare and submit to this Court by December 1, 1979, copies of the implementation plan and all working manuals to be used therein; and d. Submit annual reports beginning December 31, 1980, setting out the progress to date toward full compliance. 5. The reassessment shall take place for the first fifteen counties from January 1, 1980, through December 31, 1980, based on the value of property as of January 1, 1980. The values thus determined shall be used by the assessors for any increase or decrease in value of each property between January 1, 1980, and January 1,1981. The remaining 60 counties shall be reassessed during the next four years on the same basis. 6. This Order is entered by consent of all parties except AEA, without affecting the merits of their respective positions taken before this Court or on any subsequent appeal, except that the parties, other than AEA, stipulate that the program for compliance set out herein shall be the program used to the extent this judgment is affirmed on appeal of the constitutional questions presented. The validity of Act 411 of 1973 and Act 188 of 1969 is dependent upon the meaning of Article 16, §5 of the Constitution of Arkansas. Accordingly, we are required to interpret that section in determining this litigation. Pertinent portions, here at issue, of the section provide as follows: All property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State. No one species of property from which a tax may be collected shall be taxed higher than another species of property of equal value * * * We are called upon to determine two questions: I. Whether “value” as used in Article 16, § 5 of the Constitution of Arkansas, means “current use value” or “fair market, true or real value.” II. Whether the Legislature may constitutionally classify property with the result being that one “species” of property may be taxed on a different basis than another “species” of property. In a sense these two issues are inter-related, and this first point may require, to a certain extent, a discussion of the second point. Because it is somewhat confusing, it is perhaps best to first explain the manuals that were being used. According to Mr. Marvin Russell, Director of the Assessment Coordination Division of the PSC, the assessors had been using a manual prepared in 1960. Another manual was prepared for 1972 and four or five counties, (not entirely clear), at that time, began using the 1972 manual because they had initiated re-appraisal programs; however, the other counties continued to use the 1960 manual, and this was the manual in general use in July, 1972. In 1973, Act 411 was passed by the General Assembly, this act providing that the assessment manual and standards promulgated by the Assessment Coordination Division for the valuation of real property in this state in effect as of July 1, 1972 (this was the 1960 manual in general use except for the five counties mentioned), should continue to be the assessment manual and standards to be followed by the department in making assessment ratio studies until such time as the department promulgated new or revised assessment manuals and standards and obtained approval thereof by the General Assembly. The 1960 manual which Act 411, in effect, directed to be used, contained appraisal guides based upon 1961 values for farm and timber land and 1956 values for residential construction. Accordingly, under Act 411, residential values were “frozen” as of 1956, and timber and farm land values were “frozen” as of 1961, and those counties which had started using the 1972 manual before July 1, 1972, as Russell stated, “were actually locked into it, involuntarily.” While, according to Russell, the guidelines furnished by the manual in use at the direction of the legislature represent a minimum, actually, most of the assessors use the guidelines as a maximum. He further testified that, even though some assessments have been raised above the minimum provided by the 1960 manual, the Assessment Coordination Division makes its audit on the basis of the 1956 and 1961 valuations. Russell stated that the 1960 manual defines value as: The amount of money or money’s worth for which goods or services may be exchanged within a reasonable period of time, under conditions to which both parties to the exchange are able, willing and reasonably well informed. As defined by the courts, it is the highest price estimated in terms of money which a property will bring if exposed for sale in the open market, allowing a reasonable time to find a purchaser who buys with all knowledge of usage to which it is adapted and for which it is capable of being used. Frequently, it is referred to as the price at which a willing seller would sell and a willing buyer would buy, neither being under abnormal pressure. So, except for Acts 411 and 188, this portion of the manual would pretty well provide for market value valuations. Several studies of the ratio of assessed value to market value in particular years were mentioned in the testimony, the percentage varying all the way in one, from 2.66% to 13.93%; in another, from 2.66% to 16.87%; and in a third, from 3.98% to a high of 18.06%. It is thus readily apparent that property is not being assessed at the same valuation throughout the state, and this actually applies to all kinds of property; in fact, the ratio of assessed value to market value appears to be different in almost every county. So, it is clear that assessments are not “equal and uniform throughout the state” as required by the Constitution. But the larger question relates to the meaning of the word “value,” Article 16, § 5, requiring that “all property subject to taxation shall be taxed according to its value.” An illustration which is perhaps overly simple serves to drive home the meaning of the word “value.” If an individual displays an article, be it an article of jewelry, an automobile, or even if a house is being sold, and is asked the question, “What is its value?”, the answer, of course, is the value of that property today — not what it was worth in 1956 or 1961— or any other year. The constitutional requirement, it would appear, undoubtedly means “present value,” because its value in some other year would almost certainly not be the same as the current value, and accordingly, if some other basis is used, would not be its true value at all. In addition, the failure to use present market value, but instead to use 1956 and 1961 values, likewise violates the provision that the same shall be “equal and uniform throughout the state,” for the reason that the value of properties in some counties since those years has greatly increased, while in others there has been an increase, but not so great, and in still others, the increase in value has only been minimal. In other words, the ratio of increase in property values has been far from the same in all 75 counties. But it is argued that the Constitution provides “that value to be ascertained in such manner as the General Assembly shall direct.” So it does — but it is apparent (from cases hereafter cited) that this provision means that the General Assembly may select the method for equalizing assessments, i.e., for reaching the true value of property, and not for the purpose of arriving at a lower value for some species of property. It is interesting, and we think significant, that as far as the present subject is. concerned, all previous constitutions follow this same format. For instance, our first Constitution, adopted in 1836, uses the identical language heretofore quoted from Article 16, § 5, of the 1874 Constitution. The same is true of the 1861 Constitution and of the 1864 Constitution. The language varies in the 1868 Constitution, but provides: Laws shall be passed taxing, by a uniform rule, all moneys, credits, investments in bonds, joint stock com panies or otherwise; and also all real and personal property, according to its true lvalue in money,” (Our emphasis.) This Constitution remained in effect for six years, at which time the 1874 Constitution was passed, which again uses the exact language of the Constitutions of 1836, 1861 and 1864. Accordingly, since the language is identical, it is worthwhile to observe what our earlier courts held relative to this provision. In the early case of Pike v. State, 5 Ark. 204, decided in 1844, just eight years after the adoption of the 1836 Constitution, the court construed this same provision. The opinion was written by our first Chief Justice, Daniel Ringo. The legislature, for the purpose of raising revenue to support the state government, had enacted legislation which provided, inter alia, that a tax should be levied on all lands lying within this state (except those exempted by virtue of a compact between this state and the United States); alt town lots and the improvements thereon and providing that all lands should be valued at the true value thereof. The court held certain provisions of this act invalid, due to the fact that improvements located on town lots only were taxed and stated, “If, for instance, a tax be imposed on brick houses, no house of that description can be legally exempt therefrom, but all such, whether situated in a city, town or village, or in the country, must contribute equally, that is, in proportion to their value, to the revenue of the State.” The court added that the legislature possessed no power to restrict the operation of the law to particular lands or improvements as might be situated in some specified portion of the state, or in any sectional or legal division or sub-division thereof, the reason being that, under the Constitution, the tax imposed must be equal and uniform throughout the state. The court stated the rule to be: From the view which we have taken, not only of the provision above quoted, but of every part of the constitution, we consider the rule there prescribed to be this, that property of every character and description upon which a State tax may be levied, must be taxed in proportion to its real and true value, and according to that basis be made to contribute to the revenue of the State; and that no portion of any distinct genus or species of property upon which such tax is imposed, can ever be exempt therefrom. (Our emphasis.) In St. Louis IMS Ry. Co. v. Worthen, 52 Ark. 529, 13 S.W. 524 (1890), the only relevant question in the case was whether the legislature violated the constitutional mandate of equal taxation for all species of property when it created a state board for the task of determining the value of railroad property, the local assessors determining the value of all other property. This court held that such a procedure did not violate the constitutional requirement of equal taxation for all property of equal value. Quoting from a California case, the court said: We are unable to see how the fact that the value of one kind of property is to be ascertained by one officer or board, and the value of another kind of property by another officer or board — each clothed with the duty and responsibility of ascertaining the actual value — can be held to operate a deprivation of legal protection to the owners of either kind of property. The State board in the one case, the Assessors and county boards in the other, are but different instrumentalities through which the same result is reached; the fair and just valuation by reference to the same standard, and, therefore, the equal and uniform valuation of property for purposes of taxation. (Our emphasis.) Of course, in determining market value, there are many factors to be taken into consideration. In American Bauxite Co. v. Board of Equalization, 119 Ark. 362, 177 S.W. 1151, this court reversed the circuit court for relying upon income as the sole indicator of the value of the property in disregard of its actual market value. We mentioned several elements that could well be considered in determining market value, stating: In the determination of the market value of a given piece of property, necessarily a great many things are to be taken into account, and much of the voluminous evidence in this record is competent as bearing upon that question, although much of it tends only in a remote degree to the elucidation of that question. It is proper always in determining that question to take into account the character of the land; the uses to which it may be put; the character of the soil; the timber growing on the surface of the land as well as the ores hidden beneath; the accessibility of the land; its development; its proximity to other lands which have been so developed as to add to its own value; and the quantity of other lands of a similar character adjacent to it which would be calculated to make it more attractive to prospective purchasers, together with any other fact or circumstance which affects the property’s value. But all of these questions are to be considered for the purpose at last of ascertaining the market value of the tract in question, and that is the value which must be adopted for the purposes of assessment when it has been ascertained, in determining the market value of ordinary non-mineral land, for instance, it would not be improper to consider the depth of the soil, the crops which could be profitably grown, and the relative prices of these crops. A prudent investor would consider the accessibility of any tract of land and its convenience to market, and he would also take into account the facilities for marketing his produce. So, also, with mineral lands, it would be proper to take into account the quantity of the ore, the facilities for, and cost of mining it, as well as any other fact or circumstance which would likely make such lands a more attractive proposition to a prospective buyer. But all these things are to be considered for the purpose only of ascertaining the market value of the land. (Our emphasis.) Actually, up until the time of passage of Acts 411 and 188, the General Assembly seems to have recognized that our Constitution required the assessment of property on the basis of current market value. The opening sentence of Ark. Stat. Ann. 84-428 (Repl. 1960), which is part of an act passed in March, 1883, (nine years after the adoption of the Constitution) and a part of Chapter 4 listed “Assessment of Taxes,” provides: Each separate parcel of real property shall be valued at its true market value in money, excluding the value of crops growing thereon; but the price at which such real estate would sell at auction or at a forced sale shall not be taken as the criterion of such true value. Ark. Stat. Ann. §84-426, passed in 1929, provides: All property in this state shall be assessed by the duly authorized authorities according to its value on the first day of January. Provided, stocks of merchants and manufacturers shall be assessed at the value of the average stock in possession or under control during the year immediately preceding the first day of January of the year in which assessment is required. Ark. Stat. Ann. §84-427, also passed in 1929, provides: Every person in making his assessment shall assess all farm crops owned by him on the preceding July 31st, and according to its value of that date, instead of January 1st. Certainly there is no reference to the value of the property at any time other than those dates, and it is clear that this act called for this procedure and this valuation to be made each year. Of course, the General Assembly has the authority to enact any legislation not in conflict with Article 16, §5, and has full authority to set the percentage of market value that shall be used in making the assessment. Ark. Stat. Ann. §84-476, passed in 1955, sets out: The appraisal and assessment shall be according to value as required by Section 5 of Article XVI of the Constitution. The per centum of true and full market or actual value to be used in the appraisal and assessment shall be fixed and certified by the Commission as provided by sub-section (c) of Section 84-103, Arkansas Statutes, 1947; provided that until and unless a budget system is adopted with provisions for eliminating excessive and illegal tax rates and expenditures, the Commission shall not fix and certify a per centum of true and full market or actual value in excess of twenty per centum (20%). (Our emphasis.) It is thus apparent that the General Assembly, at least through 1955, recognized that value as used in §5 of Article 16, meant true, market, or actual value. In accordance with what has been said, it is evident that we find Act 411 of 1973 unconstitutional, and we agree with appellees that this is true for several reasons. One, however, is sufficient. Under the Act, property is not assessed as to current market value, but instead, artificial 1956 values for residential and certain construction are used, and likewise, farm and timber land are valued as of 1961, Much of what has been said necessarily applies equally to the second question, which, we commented initially, is linked with the first, viz, whether the legislature may constitutionally classify property, the result being that one species of property may be taxed on a different basis than another species of property. Act 188, even more obviously than the one just discussed, plainly violates the constitutional provision that property shall be taxed according to its value, “making the same equal and uniform throughout the state.” A few excerpts from the act clearly establish this fact. Section 1 provides: Hereafter, all lands which are actively devoted to farm, agricultural or timber use shall be assessed for ad valorem tax purposes on the basis of such current use, and shall not be assessed as if subdivided or on any other basis.* * * (Our emphasis.) Section 2, sub-sections (A) and (B), provide: (A) Any owner desiring to have his farm, agricultural or timber land assessed according to its current use under the provisions of this Act shall make application to the county assessor, of the county wherein the land is located on such forms as the county assessor shall direct. Such form must be filed between January 1 and July 1 during the calendar year immediately preceding that in which such classification is to begin. Such forms shall include only such information as shall be reasonably required to determine the entitlement of the applicant and each application shall include an affidavit that the statements contained therein are true. (B) Upon the submission of the initial application if the county board of equalization of the county wherein the real property is located finds that the land qualifies under the provisions of this Act, it shall file notice of the same with the county assessor, and the county assessor shall as to any such land make a notation on the assessment list and the tax roll each year of the assessed value of such land for the use for which it is classified in addition to the assessed value of such land were it not so classified, and shall file notice thereof with the county tax collector. (Our emphasis.) Sub-section (D) provides that once the land has been classified as farm property, it shall remain in that classification until there is a request by the owner that it be withdrawn from the classification, or until the assessor shall find that the land is used for other purposes. The legislation provides that the owner each year shall file an affidavit that the land is being used for farm, agricultural, or timber purposes. The Act then sets out: Any lands withdrawn from the above classification either by the owner or through failure of the owner to file the required affidavit of use shall not be entitled to be classified again under this Act as farm, agricultural or timber lands until a four (4) year period has elapsed. If the land is either withdrawn from the above classification or the owner thereof shall fail to file an affidavit of use each year, then the land shall be assessed and taxes collected thereon as non-farm, non-agricultural or non-timber lands. (Our emphasis.) In other words, farm, agricultural and timber lands, under Act 188, are taxed according to the use made of the property, and not the market value, which we have pointed out as the requirement under Article 16, §5 of the Constitution. In Little Rock & Ft. Smith Ry. Co. v. Worthen, 46 Ark. 312, this court said: The theory of our constitution is that the common burden shall be borne by common contributions. All property is to be taxed according to its value. ‘All’ does not mean all the legislature may designate, or all except such as the legislature may exempt. If this were so the whole burden of taxation might be thrown upon land, or upon any one species of property. It means all private property, of every possible description, or all property other than that belonging to the state, or the general government. The legislature cannot discriminate between different classes of property in the imposition of taxes. The only discretion with which it is invested, is in the ascertainment of values, so as to make the same equal and uniform throughout the slate.{Our emphasis.) In Hays v. MoPac Ry. Co., 159 Ark. 101, 250 S.W. 879, we said: It is true that property such as railroads may be classified for taxation and assessed by different methods and by different officers from those assessing other property. But the object is nevertheless the same, and that is to arrive at the value of the property and tax it according to its value, making the same equal and uniform throughout the State. While exact equality in taxation cannot be achieved, intentional inequality of assessments violates the mandate of the Constitution in question and invalidates the tax. Likewise, in Pulaski County Board of Equalization v. American Republic Life Ins. Cos., 233 Ark. 124, 342 S.W. 660, this court reiterated the constitutional requirement, stating: The language of the constitution is too plain to be misunderstood: ‘No one species of property . . . shall be taxed higher than another species of property of equal value.’ (Our emphasis.) Professor Wade J. Newhouse, }r., in his text, Constitutional Uniformity and Equality in State Taxation (1959), reviews the ad valorem tax laws of all the states. As to Arkansas, he states: Property may be classified for the purpose of using different methods in determining the value of the several classes. It is important for comparative purposes to emphasize this because any indication found in the annotations or digests of cases to. the effect that ‘property may be classified for purposes of taxation’ stems from the language found in the cases ruling on this particular point. Taken out of context, the language quoted in the annotations is misleading. But there is no confusion in the actual decisions of the Arkansas court. Any statements concerning the classification of property were made solely in relation to classification for the method of determining the value of property. (Our emphasis.) As pointed out throughout this opinion, almost from the beginning of our statehood, the word “value” in Article 16, §5, has been interpreted by this court as meaning current market value, and likewise, legislation enacted during this long period of years has consistently recognized that interpretation of the Constitution up until the time that Acts 411 and 188 were passed. Also, it is clear the Constitution provides that no one species of property from which a tax may be collected shall be taxed higher than another species of property of equal value, a provision which Act 188 clearly violates. We agree with the trial court that the provisions of both Act 411 of 1973 and Act 188 of 1969 are not in conformity with the constitutional provision herein discussed, and thus are unconstitutional, void, and of no effect. In the final part of its order, the trial court, with the agreement of all parties except the Arkansas Education Association (and this last organization has not argued the matter in its brief), framed a remedy (to avoid undue disruptions) which allows until the end of 1979 for the PSC to complete preparation of an implementation plan and working manuals to be used therein, and further provides that a statewide reassessment program shall begin January 1, 1981, using 15 counties each year, as designated in the order, from that date until the program is completed. As stated by the appellees, this remedy furnishes sufficient time for planning by the counties and the state-to achieve a proper level of taxation by adjustment of millage, adjustment of the 20% ratio required, or by constitutional amendment. Since it is agreed upon by three of the four groups of parties and not affirmatively opposed by the fourth, we approve the agreement. Affirmed. Byrd, J., concurs; Fogleman and Hickman, JJ., concur in part and dissent in part. All other 74 assessors were made party defendants in the action filed with the PSC and the Arkansas Education Association was subsequently given permission to intervene. Additionally, the section provides that certain property shall be exempt from taxation, viz., “public property used exclusively for public properties; churches used as such; cemeteries used exclusively as such; school buildings and apparatus; libraries and grounds used exclusively for school properties; and buildings and grounds and materials used exclusively for public charity.” Act 411 does provide that the assessors may use other acceptable appraisal or valuation methods which in their judgment provide for a more equitable assessment and appraisal of real and personal property (provided that these methods do not place the assessment below the years heretofore mentioned). This section provides that the Arkansas Public Service Commission shall have full power and authority in the administration of the tax laws of the state now in force or such as may hereinafter be enacted and sub-section (c) provides that the Commission shall “file with the county judge, county clerk and county assessor of each county not later than ten [10] days before the time for the beginning of the assessment of property by the tax assessors a certificate showing the per centum of true and full market or actual value that it has used, or will use, in valuing for taxation for that year the property the Commission is required to assess; and it shall be the duty of the assessors and boards of review or equalization and county judges to adopt the same basis of valuation of property in their county for the purpose of taxation as that so certified by the Commission.” Of course, Constitutional Amendment No. 57 was adopted in November, 1976, §1 providing: “The General Assembly may classify intangible personal peoperty for assessment at lower percentages of value than other property and may exempt one or more classes of intangible personal property from taxation, or may provide for the taxation of intangible personal property on a basis other than ad valorem.” § 2 provides: “The provisions of this amendment shall be in lieu of those provisions of Article 16, §5 of the Constitution of the State of Arkansas relating to the assessment and taxation of intangible personal property.” (Our emphasis.) This was prepared while Professor Newhouse was research assistant to the Legislative Research Center, University of Michigan Law School, and was completed during succeeding summers. Professor Newhouse states that he attempted to reflect all cases cited through the summer of 1956. At the time of publication, he was connected with the School of Law of the University of Buffalo at Buffalo, New York.

J. If red Jones, Justice. This appeal is from a judgment of the Pulaski County Circuit Court affirming an order of the Arkansas Commerce Commission in denying an application by Robert Torrans, doing business as Commercial Storage & Distribution Co., for authority io transport household and other goods and equipment intrastate. Torrans’ main place of business is located in Texarkana, Arkansas, and he had a Texas permit authorizing intrastate operation in that state. He already had Arkansas authorization to transport household goods within Miller County and to and from the city of Texarkana, Arkansas. The intrastate authority was .‘-■ought under the provisions of Ark. Stat. Ann. § 73-1762 (Ropl. 1957) which provides: .. TA] certificate shall be issued ... if it [is] found that the applicant is fit, willing and able properly to perforar the service proposed ... and that the ... service ... is or will be required by present or future public convenience and necessity; otherwise the application shall be denied; and the burden of proof shall be upon the applicant...” Several certificated common carriers of the type goods included in appellant’s application filed protests asserting that the proposed service is not required by the present or future public convenience and necessity, and a full hearing was had before the Commerce Commission resulting in the denial of the petition. Upon appeal from the judgment of the circuit court affirming the order of the Commission, the appellant relies on the following points for reversal: “Circuit Court erred in not trying the case de novo, according to Sec. 73-133, Ark. Stats., Mo. Pac. T. Co. v. Inter City T. Co., 216 Ark. 95, 224 S.W. 2d 372, and in not deciding whether the determinations of the Commission were contrary to the weight of the evidence, but found that the order of the Commission is supported by substantial evidence, p. 12 of R. Vol. 2, and solely on this basis erroneously affirmed all the findings of the commission. The trial court erred in sustaining the Arkansas Commerce Commission’s denial of the authority of Torrans for household goods applied for. The trial court erred in sustaining the Arkansas Commerce Commission’s denial of authority to transport additional commodities. The trial court erred in sustaining the Arkansas Commerce Commission’s denial of extension of authority from Miller County to include additional commodities in Southwest Arkansas. The trial court erred in sustaining the Arkansas Commerce Commission’s denial of Torrans’ application in its entirety. The trial court erred in sustaining the Commission’s finding that ‘the present certified carriers have equipment which stands idle a good part of the time because of lack of business.’ Fisher v. Branscum, 243 Ark. 516. The trial court erred in sustaining the Arkansas Commerce Commission’s finding that ‘there appears nothing in the record to show that sufficient business is generated in such adjacent counties to justify additional certified carriers.’ ” Under the appellant’s first point, he argues that the circuit court erred in applying the “substantial evidence” rule rather than the “weight of the evidence” rule in reaching its decision. The trial court’s judgment does recite that the order of the Commission “is supported by substantial evidence, and should be, and the same hereby is affirmed.” Arkansas Statutes Annotated § 73-133 (Repl. 1957) sets out the procedure to be followed by the circuit court in reviewing an order of the Commerce Commission. This statute, insofar as it is applicable here, is as follows: “Within thirty days after the entry on the record of the [Arkansas Commerce Commission] ... of any order made by it, any party aggrieved may file a written motion .. . prajring for appeal from such order to the circuit court... The said circuit court shall thereupon review said order upon the record presented . .. and enter its findings and order thereon ...” Appeals to this court from circuit court judgments affirming or reversing orders of the Commerce Commission are governed by Ark. Stat. Ann. § 73-134 (Repl. 1957), as follows: “.. . [T]lie appeal to the Supreme Court shall be governed by the procedure, and reviewed in the manner applicable to other appeals from such circuit court, except that any finding of fact by the circuit court shall not be binding on the Supreme Court, but the Supreme Court may and shall review all the evidence and make such findings of fact and lawr as it may deem just, proper and equitable.” In the case of Wisinger v. Stewart, 215 Ark. 827, 223 S.W. 2d 604, this court said: “A point not to be lost sight of here is that de novo review by the courts, including this Court, must not proceed as though the Public Service Commission did uot exist and had never held a hearing'. A hearing has been held, and the Commission which held the hearing has had the advantage of seeing and hearing the parties and witnesses face to face, whereas the Circuit Court and this Court review the evidence from the record only. ‘Where a matter is heard and decided by an administrative body such as the Public Service Commission, an order made by it should be upheld by the court on appeal unless it is against the weight of the evidence.’ Camden Transit Co. v. Owen, 209 Ark. 861, 192 S.W. 2d 757, 758.” Apparently the trial court did err in applying the substantial evidence rule in the case at bar, but such error is not prejudicial to the appellant since we also review the record de novo on appeal from the circuit court and must affirm the order of the Commission if the order is not against the preponderance of the evidence. In Mo. Pac. T. Co. v. Inter City T. Co., 216 Ark. 95, 224 S.W. 2d 372, we said: “... [T]he de novo review prescribed by the governing statute, Ark. Stats. (1947) 73-133 and 73-134, is similar to that employed by this Court in Chancery appeals. Accordingly it was concluded that ‘This Court’s proper task, in the light of this state of the law, is to inquire whether the determination of the Commission was contrary to the weight of the evidence.’ ” The testimony presented by appellant in support of his application is summarized briefly as follows: Appellant, Robert Torrans, testified that there is an obvious need for movers in southwest Arkansas based upon moves that he has been unable to handle. Mr. O. L. Werst, an employee of the appellant, testified that he lived at Hatton in Polk County, Arkansas; that he owns a tractor of his own and did use a rented trailer belonging to Mayflower Transit Oo. prior to his transfer over to working for the appellant in 1960. He testified that if the appellant was awarded the intrastate permit, that he, Mr. Worst, would be in a position to service the area in and around Hatton. He testified that he received telephone calls quite frequently from residents in the community, but that he does not remember specifically who any of the individuals were or the time at which the calls were made. He did recall a Mr. (J. H. Johnson, who lived at Cove, Arkansas, and that he moved him from Cove to Mena, and that since that time, within the last year, he had moved the same man interstate from Mena to Ardmore, Oklahoma. On cross-examination this witness testified that he had only handled the one move intrastate and that he was contacted by one other individual, and suggested that that individual call the appellant in regard to a move from Wicks to Ashdown. Mr. Hollis Luck of Hope, Arkansas, testified that he was in the used furniture business and previously Avas in the floorswoep manufacturing business; that he used his oaaui truck in picking up used furniture at the various places he purchased it, and that he thinks he would go out and buy more furniture if he could get it moved. He testified that it was necessary for the people in the vicinity of Hope to borrow a cattle or log truck to move their furniture, and that he is unable to get anything shipped out of Hope because the original certified mover AArho was at Hope had died and his wife had sold out to somebody else and that the new owners do not want to move household goods. On cross-examination this witness testified that he desires intrastate service for the appellant in order to bring merchandise into Hope; that he is purchasing used furniture locally at the present time, and that an intrastate carrier based in Texarkana Avould be of very little benefit to him, and that the reason common carriers do not like to handle his merchandise is that it doesn’t weigh enough. This witness testi tied tliat he was under the impression that if the application should be granted, the appellant would dispatch a truck to Texarkana to pick up a load of furniture, and that he does not know if other common carriers would do the same thing or not; that he has not investigated what intrastate service is available at the present time. Mr. Walker Strasner testified that he was in the business of farming and cattle raising, and that he does some trading in real estate at Nathan, Arkansas, north of Nashville. This witness testified that there was new industry moving into the entire area, that he sees lots of moving going on in the community, and that the moving he has observed has been in cattle trucks and open-top trucks. On cross-examination this witness testified that the moving he had observed had been in the vicinity of. Murfreesboro, Nashville, Nathan and Dierks, and that he had never had an occasion to make an investigation as to what type of moving was available from Prescott, Hope or any other towns in that area. Mr. Ed Smith testified that he lives at DeQueen, Arkansas, and is a salesman for a realty company in that area. He testified that he does not know of any common carriers situated in that area, and that he has had occasion to use the service of a household mover; that he does not remember the date but that he moved from one place to another in the city of DeQueen. He testified that he moved in an open truck and that there was no household mover in town. He testified that he knew of people moving from other parts of Arkansas to DeQueen and from DeQueen to other parts in Arkansas, but that he does not know how they moved. On cross-examination this witness testified that he moved from one place in DeQueen to another address some four years ago and that he did not have need for a household goods mover transportation service. Mr. Luther Alford testified that he lives in Murfreesboro, Arkansas; that he has lived in that community all of Ills life, is 73 years of age, and lias fanned and lias served eight years as deputy sheriff. He testified that he had observed people moving household goods into and out of Murfreesboro and that the most of them had moved on open cattle trucks. This witness testified that he remembers seeing one van type moving* truck from Hope, and that he thinks that this move was from Murfreesboro to Hope. Mr. Smith testified that he knew of no specific instance of anyone having difficulty in moving to and from Murfreesboro, but that he did know of one particular case where some people in Clarendon called a cattle truck to come from Murfreesboro to move them. Mr. Smith testified that the majority of the people he had observed moved in cattle trucks and that he cannot think of anyone in particular he has heard complain about lack of moving facilities. On cross-examination this witness testified that the last move he had made was in 3932, when he moved from one part of Murfreesboro to another. He testified that he does not have any need for a moving service, but that he does not know when he might. Mr. M. A. George testified that he lives in Cove, Arkansas, and is a real estate broker; that some of the sales that he has made have resulted in people moving in and out of the community. He says that most moves are made by pickup trucks or cattle trucks, and that apparently no other local service is available to them. This witness testified that he would be glad to refer his clients to the appellant if the appellant were able to render local service and that he would like to be able to refer his clients who inquire about movers to someone close by. On cross-examination this witness testified that he had no personal need for the service of a household goods mover. He was unable to recall any specific clients who had need of a household mover from Cove, but that everyone would be more or less familiar with the fact that there was no one available. This witness testified that he had no idea of the type service the appellant proposed to render out of Cove, Arkansas, and that he has made no investigation as to existing facilities which might he available in and around Cove. This witness testified that he could think of no reason why existing carriers could not have performed the services needed in the community. He testified that he had contacted no mover of household goods and has had no occasion to do so. He says that he has heard complaints about the lack of moving facilities but cannot remember who made them or when. He testified that he had made no effort to find moving service in Texarkana or the nearby towns. Mr. A. J. Robinson testified that he lives at Wicks, Arkansas; that .lie owns a little motel and drive-in and that he is a real estate broker. This witness testified that the community was growing; that he had seen people moving in pickups and cattle trucks, but that he does not know whether the trucks belong to the people doing the moving or to someone else. This witness testified that be has no need for a furniture moving service personally. Mr. George Turner testified that he lived in Lewis-ville; that the community is growing, that there is no common carrier of household goods stationed in Lewis-ville, and that the people moved mostly by pickup truck. On cross-examination Mr. Turner testified that it is approximately 30 miles from Lewisville to Texarkana; that until very recently he was office manager for Cherokee Carpet Mills; that he has no need for moving service himself and that his only reason for appearing as a witness was to testify that Lewisville has grown in population in'the last five years, and that new industries are coming into the area. Mr. Jim C. Reece and Mr. Odie Jackson, who live at Nashville, testified substantially the same as the other witnesses to having seen people moving locally on bob-trucks and most anything they could get. Mr. Jackson testified that he liad seen a few moving vans come into Nashville, but does not know where they were from or anything about them. He testified there was no common carrier of household goods domiciled in Nashville, and that he suspects Texaidtana would be the closest place to obtain the services of a regular moving van for the moving of household goods. Mr. W. A. Jones testified that he lived in Texark-■ ana and is in the real estate business. He testified that the population in and around Ashdown is increasing and testified as to the new industry that is coming* into southwest Arkansas. On cross-examination this witness tesüfied that Ashdown is approximately 20 miles from Texarkana, and that he himself has no transportation problems of any kind. The twelve protestants offered testimony 'to the effect that they were actively engaged in the rendition of the same services included in appellant’s application. They testified that they were ready, able and willing to accept additional business and that there were many tidies when some of their equipment was standing idle. They testified that they solicited business by advertisements in the yellow pages of telephone directories in all parts of the state, including southwest Arkansas ;• that they accepted long distance collect calls from prospective customers and had never received a request for service fhey'wore unable or unwilling to perform. .The finding of the Commission, in denying the appellant’s application, is set out in part as follows: . . “The Commission has given careful consideration to all of the facts and the evidence and, as stated above, finds that the Applicant has not met the burden of proof imposed upon him by Section 9 (a) of Act 397 of the Acts of Arkansas, 1955.'' Accordingly, it follows that no useful purpose would be served by granting Applicant authority in any adjacent county, since there appears nothing in the record to show that sufficient business is generated in such adjacent counties to justify additional certificated carriers. Prom the foregoing, the Commission is of the opinion that the application must be denied in its entirety.” In the rather recent case of Arkansas Best Freight System v. Missouri Pacific Truck Lines, 240 Ark. 664, 401 S.W. 2d 571, we said: “The rule is set out in Missouri Pacific Railroad Company, Thompson, Trustee v. Williams, 201 Ark. 895, 148 S.W. 2d 644. There quoting from A.L.N., we said: * * The general rule is that a certificate may not be granted where there is existing service in operation over the route applied for, unless the service is inadequate, or additional service would benefit the general public, or unless the existing carrier has been given an opportunity to furnish such additional service as may be required. ’ # * * Of course, a few individuals or companies might receive some benefit from the granting of a certificate ... but the benefit that might accrue in these isolated cases is not what is meant by the term ‘public convenience and necessity.’ ” In the still more recent case of Fisher v. Branscum, 243 Ark. 536, 420 S.W. 2d 882, we said: ‘ ‘ In weighing the evidence, we do not substitute our judgment for that of the Commerce Commission. We will accord due deference to the Commission’s findings because of its peculiar competence to pass upon the fact questions involved and because of its advantage in seeing and hearing the witnesses during the full hearing.” Prom our examination of the entire record in this case, avo are unable to say that the findings of the Com mission and its order entered tliereon, were against the weight of the evidence. The judgment of the trial court is affirmed. Affirmed.

Htjmphbeys, J. Information was filed in the circuit court of Polk county, Arkansas, by the prosecuting attorney on the 19th day of October, 1938, against A. C. Morris, charging him with the crime of grand larceny in three separate counts with unlawfully, and feloniously stealing, taking, driving and carrying away four head of cattle, the property of Gerald Ridings, and five head of cattle, the property of Teresa Ridings, and one red cow (heifer), the property of Mrs. Janie Ridings, on the 26th day of May, 1938, with the felonious intent to deprive each owner of his property, against the peace and dignity of the State of Arkansas. Appellant was-arraigned on said charges on the 25th day of October, 1938, and pleaded not guilty, whereupon, he filed a motion for a continuance in due form on account of the absence of one of Ms witnesses, 'Clyde McBride. Testimony was introduced by appellant and on behalf of the state and the motion was overruled, over the objection and' exception of appellant. The testimony taken before the judge on the motion has been omitted from the record. The cause then proceeded to a trial upon the information, testimony and instructions of the court resulting in the following verdicts: “We, the jury, find the defendant guilty on the first count, and fix his punishment at one year in the pemten-tiary. We, the jury, find the defendant guilty on the second count, and fix his pumshment at one year in the penitentiary. We, the jury, find the defendant guilty on the third count, and fix his punishment at one year in the penitentiary. Gr. R. Price, Foreman. ’ ’ Judgments were rendered in accordance with the several verdicts returned, from which is this appeal. At the conclusion of the testimony appellant requested the court to direct a verdict acquitting and discharging him, which request was denied over appellant’s objection and exception. Appellant’s first assignment of error is that the court overruled his motion for a continuance. As stated above the motion was in proper form and shows that Clyde McBride was subpoenaed on the 22nd of October, and the trial was begun on the 25th of October. The testimony shows that Clyde McBride was a non-resident of the state of Arkansas, living at Jafry, Oklahoma. The motion for a continuance states that if the case were continued by the court appellant would be able to have the absent witness present. Since it was not stated in the motion how he would obtain the presence of the absent witness if the cause were continued and since the testimony taken before the court on this question does not appear in the .record, the testimony was insufficient to show that the court abused his discretion in not granting a continuance. The question of granting or refusing a motion for a continuance is a matter in the sound judicial discretion of the trial court and a reversal can only be had where it is shown by tbe record tbat tbe refusal to grant a continuance was an arbitrary abuse of discretion. Gallaher v. State, 78 Ark. 299, 95 S. W. 463; Adams v. State, 176 Ark. 916, 5 S. W. 2d 946; Smith v. State, 192 Ark. 967, 96 S. W. 2d 1; Martin v. State, 194 Ark. 711, 109 S. W. 676. Refer-enee is made to tbe following cases to support tbe rule tbat tbe trial court’s discretion in refusing a continuance in a criminal case on account of tbe absence of non-resident witnesses is not an arbitrary abuse of bis discretion. Turner v. State, 135 Ark. 381, 205 S. W. 659; Freeman v. State, 150 Ark. 387, 234 S. W. 267; Hays v. State, 156 Ark. 179, 245 S. W. 309. Appellant’s second assignment of error is tbat tbe evidence is insufficient to sustain tbe conviction and tbat tbe court should have given appellant’s requested instruction to acquit and discharge him. Tbe argument is tbat all witnesses testifying against appellant except tbe sheriff were accomplices in tbe crimes and tbat there was no corroboration of their testimony except in so far as these accomplices corroborated each other. Tbe testimony of these accomplices' was to tbe effect tbat Atley Self, Dale Warren and appellant drove tbe cattle in question off tbe range from tbe Vaught place in Oklahoma over into Arkansas to tbe Crock Warren farm where tbe cattle were placed in Warren’s barn; tbat all of tbe cattle were branded with an “R” and were on the night after being driven over tbe line loaded in a truck owned and operated by J. R. Bell and tbat appellant and J. R. Bell started off with them to Memphis for tbe purpose of disposing of them and tbat they were arrested a short distance after leaving the Crock Warren farm and tbe cattle were taken under tbe direction of tbe sheriff to tbe home of Gerald Ridings, bis mother and sister and turned into their pasture after they identified tbe cattle as being owned by said parties.- Appellant testified tbat be was employed by Crock Warren to take tbe cattle to Memphis and sell them for him and was to receive $55 for tbat service; tbat be engaged J. R. Bell -to haul them in bis truck and agreed to-pay him out of the proceeds of tbe cattle $45 for bis serv ices. The jury did not accept his explanation of being in possession of these stolen cattle. The undisputed proof shows by persons who were not accomplices in the crime that the cattle had been stolen. The possession of recently stolen property, if unexplained to the satisfaction of the jury, is sufficient to sustain a conviction either of larceny or of receiving stolen property. It was a matter for the jury to determine the reasonableness and sufficiency of the explanation given by appellant of his possession of the stolen property. Daniels v. State, 168 Ark. 1082, 272 S. W. 833, and cases cited therein; Bowser v. State, 194 Ark. 182, 106 S. W. 2d 176. We think the fact that appellant' was in possession of recently stolen property was sufficient corroboration of the testimony of appellant’s accomplices to sustain the conviction. Moreover, appellant is not in a position to raise the question as to the insufficiency of the evidence on the ground that the testimony of the accomplices were not corroborated. It is provided by § 4017 of Pope’s Digest that: “A conviction cannot be had in any case of felony upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense; . . .” Appellant did not request an instruction under this statute, but he contented himself with requesting an instructed verdict on the whole case. If appellant had desired an instruction under the. statute it was his duty to have made such a request and as he failed to do so it is now too late to complain on the appeal of his case. Slinkard v. State, 193 Ark. 765, 103 S. W. 2d 50. Appellant’s last assignment of-error is that the court erred in instructing the jury and in refusing to give certain instructions requested by him. The objections to the instructions given by the court were in gross and such an objection is not sufficient to successfully attack them as being erroneous. We have looked to them, however, and find that the instructions given were in the usual form for larceny eases and find no error in any of them. The instructions which were refused by the court at the request of appellant were fully covered by the instructions which were given by the court to the jury. No error appearing, the judgments are affirmed.

Holt, J. The only question presented by this appeal is: Is there evidence of a substantial nature sufficient to support the jury’s verdict? Appellee, L. M. Harden, on April 7, 1938, filed complaint in the Phillips circuit- court iii which he alleged that as he drove upon appellant’s track at a regular crossing in the city of Marianna, Arkansas, the automobile which he was driving was struck by one of appellant’s trains, resulting in damages to his car and injuries to himself; that before driving on the crossing 'he brought his car to a full stop within fifteen or twenty feet of the track, looked in both directions and listened to determine whether or not a train was approaching, that his view was obstructed so that he could see, only in one direction, but a short distance. That he saw no train approaching. That appellant was negligent in failing to give the statutory signals by ringing the bell or blowing the whistle, and prayed for damages tó his automobile in the sum of $250.00 and for personal injuries in tlie sum of $2,000. Appellant denied every material allegation in the complaint and interposed the affirmative defense of contributory negligence on the part of appellee. A trial to a jury resulted in a verdict for ap-pellee in the sum of $750.00. The material facts stated in their most favorable light to appellee show that at the time of the collision he was living in Helena, Arkansas, and was a traveling salesman. During the past six years he had made Mari-anna frequently and was familiar with the crossing in question, having passed over it mány times. Just before the collision in question appellee was driving West on Locust Street. When within fifteen or twenty feet of the crossing, he brought his car to a complete stop, listened but heard no warning signals of any kind indicating the approach of a train. He looked in both directions, north and south, and saw no train approaching. Prom where his car stopped he could only see a distance of 150 feet in the direction from which the train was coming. The crossing is on a curve ' of the railroad track. Appellee’s vision was obstructed by trees and heavy foliage, and the record shows, both from photographs and testimony of witnesses, that tile street over which -appellee was traveling comes out of a cut just before crossing the track. Appellee after he started his car at the point fifteen or twenty feet from the cross--ing in attempting to pass over it, did not again look in the direction of the train until he was upon the crossing. The windows in his car were up. His motor made no noise to amount to anything and his car was making very little noise. His hearing is good. There is other evidence presented that no warning signals as required by the statute were given before this collision occurred. No complaint is made as to any instructions given or the amount of the verdict. Under these facts, appellant earnestly contends that we should say as a matter of law that appellee was guilty of a degree of negligence equal to or greater than the operatives of appellant’s train and, therefore, barred from recovery. To this contention we cannot agree. The principle of law governing in a case of this kind has been frequently declared by this court and is well stated and illustrated in Smith v. Missouri Pacific Railroad Company, 138 Ark. 589, 211 S. W. 657, wherein this court said: “No inflexible rule .can be laid down as to when or under what circumstances a traveler at a public railroad crossing will be free from contributory negligence in going over the crossing; but each case must necessarily depend upon its own particular facts. As a general rule a traveler on a street or highway approaching a railroad crossing is bound to exercise such care and prudence as an ordinary prudent man would exercise under the circumstances in looking and listening for approaching trains and stopping, if need be, before going on the crossing,-and if he fails to do so, he is guilty of contributory negligence barring a recovery, although the railroad company itself is guilty of negligence. In the present case the plaintiff testified that he did look and listen for an approaching train before turning on the crossing, but that he did not see nor hear one. Counsel for defendant claim that plaintiff’s testimony in this respect is not entitled to any probative force because the railroad track was straight for several miles north of the crossing and that he was bound to have seen the train had he looked for it. It will be remembered that the plaintiff drove northward on the street parallel with the railroad track and that he said there were some trees just outside of the right-of-way and some telegraph poles inside the right-of-way which obscured his vision to the north. In addition to this he listened for the statutory signals for the crossing to be given and did not hear them. It is true he did not look for the train when he got on the crossing; but the track to the north was straight and plaintiff had been looking in that direction for the train and listening for its approach or signals thereof as he drove up the street. When he did not see or hear the train as he drove on the crossing’, the .jury might have found that he was justified under the circumstances in thinking there was no train coming-near enough to prevent his crossing in safety and that it would be best for his safety to devote his whole attention to driving his car over the crossing. He had only thirty-five yards to go and it will 'be remembered that the train struck the-hind wheels of his automobile, thus showing* that in another instant he would have. been across. Other witnesses testified that no warning of the approach of the train was given by blowing the whistle or ringing the bell for the public crossing as required by the statute.” The instant case presents a state of facts less favorable to appellant than those in the above case. Here we have a person approaching a street railroad crossing which is- on a rather sharp curve. His view is so obstructed by trees, foliage and the banks of the cut from which he is emerging- that he could not see more than 150 feet in the direction from which the train was approaching, when he looked after bringing his car to a complete stop fifteen or twenty feet from the track. He heard no signals or warnings of any kind from the operatives of appellant’s train. Under these conditions, the jury might have found that the proximate cause of the collision and consequent damages was the failure of appellant to give the statutory signals. In St. Louis, I. M. & S. Ry. Co. v. Prince, 101 Ark. 315, 142 S. W. 499, this court said: ‘ ‘Where a traveller crossed several tracks at a public crossing and was injured, it was held that where there was evidence that the plaintiff looked and listened before going on the track where he was injured, but on account of obstructions he was' unable to see the approaching train in time to avoid injury, and was unable to hear it, the question whether he was guilty of contributory negligence was properly submitted to the jury. And to the same effect, see, also, St. Louis, I. M. & S. Ry. Co. v. Garner, 90 Ark. 19; 117 S. W. 763 Louisiana & Ark. Ry. Co. v. Nix, 94 Ark. 270, 126 S. W. 1076; Ft. Smith & W. Ry. Co. v. Nessek, 96 Ark. 243, 131 S. W. 686; Arkansas & La. Ry. Co. v. Graves, 96 Ark. 638, 132 S. W. 992; St. Louis, I. M. &. Ry. Co. v. Stacks, 97 Ark. 405, 134 S. W. 315; Arkansas Cent. Ry. Co. v. Williams, 99 Ark. 167, 137 S.W. 829.” On the whole case, therefore, we conclude that there is evidence of a substantial nature to support the jury’s, verdict, and no errors appearing, we accordingly affirm.

GrieeiN Smith, C. J. Appellant, who are partners, question two of several judgments rendered in consequence of personal injuries and property damage sustained when an ambulance owned by appellants, and an automobile owned by Ed Blair, collided. Blair, with others, was in his car when the accident occurred. Mrs. Blair was driving. Jury verdicts resulted in judgments for $2,000 in favor of Ed Blair, and $2,500 for his wife. Damage to the automobile was $350. Medical and hospital bills, and services of physicians incident to treatment of the Blairs, amounted to $275, leaving $1,375, and $2,500, to compensate injuries sustained by husband and wife, respectively. It is not contended that the injuries were permanent. Appellants urge a failure of appellees to establish by proper proof — that is, by substantial evidence — that the injuries were sufficient to justify the amounts awarded. Unless, in a given case, the judgment is so large as to attest that considerations other than appropriate evidence induced the verdict — such, for instance, as excess sympathy, prejudice, a response to passionate appeal, inflammatory argument, and the like — and unless we can say that no jury, free from improper inducement, would reach the conclusion that is challenged, this court does not direct a remittitur; or, in the alternative, reverse for' retrial. Applying this rule to the appeal before ns, the judgments must be affirmed. It is so ordered.

Grieein Smith, C. j. Invalidation of Street Improvement District No. 3 of the town of Charleston, Arkansas, was sought in a proceeding instituted by appellant, the allegation being that there was material variation in boundaries declared in the petition and those shown in the statutory notice as published. In substance the agreed statement is: Second street, under the description proposed in the petition, would he paved from Greenwood street to Prairie street'. Second street runs east and west. Vine street is one block east of Prairie. In the newspaper publication there are two descriptions: (a) That shown by the petition, “Second street from Greenwood to Prairie” (correct), and “Second street from Greenwood to Vine.” The latter description extends the proposed improvement one block, but the betterment area is not affected. It is conceded by appellant that the' added description is a duplication insofar as it identifies the paving from Greenwood to Prairie street, and that it is a clerical or printer’s error as to the extension from Prairie to Vine. It is also stipulated that the error is not prejudicial. The law is well settled that publication of notice is jurisdictional. The facts having been shown, a stipulation cannot affect the result unless, as a matter of law, the error or misprision may he excused. In the absence of publication in substantial compliance with statutory requirements, the town council was powerless to proceed with formation of the district. The reports are full of cases sustaining the view that the petition, the notice, and the ordinance must be in harmony. In these cases we find the following expressions : “The foundation of the improvement was the petition of the owners.” “Under the statute the extent and character of the improvement, as expressed in the ordinance, must substantially comply with the terms of the petition upon which it is based.” “A special limited'jurisdiction is conferred upon the city council to lay off the district as designated by the property-owners in the first petition, and the council must conform strictly to the authority conferred upon it.” “It is essential that there be no uncertainty about the improvement which it is proposed to make. All of the decisions make it plain. . . . The details and plans of the improvement may be worked out by the board of improvement after the establishment of the district petitioned for, but the discretion of the board is limited to carrying out the purpose of the petition.” “It is the duty of the city council to pass an ordinance in substantial compliance with the terms of the petition upon which it is- based. ’ ’ ‘ ‘ The omission from the publication of one lot which was included in' the petition cannot be said to be an immaterial variance.” - In Smith v. Improvement District No. 14, supra, Mr. Justice Hart, in speaking of the extent and character of the district, stated that they should “substantially” comply with the terms of the petition. This expression, however, was quoted from Kraft v. Smothers, 103 Ark. 269, 146 S. W. 505, which was an opinion handed down by Mr. Justice Hart a year before the Smith-Improvement District Case was decided. In the latter case there appears the language quoted supra, holding that a special limited jurisdiction is conferred upon the city council to lay off the district as designated by the property owners in the first petition. It was then said that “the council must conform strictly to the authority conferred upon it.” [Italics supplied]. Fifteen years later, in the Holt-Bing Case, the language used by Mr. Justice Hart in the Kraft-Smothers Case again appears in a decision holding that it is the duty of the city council to pass an ordinance in “substantial” compliance with the terms of the petition upon which it is based. In the meantime, however, there appeared the holding in the Cox-Boad District Case where it was said that “all of [the] decisions make it plain that there must be no uncertainty about the improvement proposed.” In Bennett v. Kelley, 179 Ark. 530, 16 S. W. 2d 992, a more liberal construction, or rule, was adopted, in a holding that where the notice was at variance with the petition and ordinance, and where, from a comparison of the ordinance with the petition an interested party could have ascertained that the variance was but a misprision or typographical error, no legal prejudice resulted. In the Kelley-Bennett Case the northeast corner of lot 4, block 5, etc., was described as the northwest corner of lot 4, block 5. Mr. Justice Kirby.said: “These patent clerical or typographical errors in ¡the published description of the boundaries of the district did not invalidate the ordinance creating it.” In the instant case there is no allegation or even a suggestion that property was erroneously included in the district for purposes of taxation. Whether paving on Second street ended at Prairie street, or was extended to Vine (as the .erroneous publication would indicate), boundaries of the district for betterment assessments are not affected. The ordinance was in the language of the petition; only the notice, with its duplication of the description, is complained of. The chancellor properly sustained appellee’s demurrer to the complaint. Affirmed. Pope’s Digest, § 7281. Smith v. Improvement District No. 14, 108 Ark. 141, 156 S. W. 455, 44 L. R. A., U. S., 696. Smith v. Improvement District No. 14, supra. Smith v. Improvement District No. 14, supra. Cox v. Road District, 118 Ark. 119, 176 S. W. 676. Holt v. Ring, 177 Ark. 762, 9 S. W. 2d 43. McRaven v. Clancy, 115 Ark. 163, 171 S. W. 88. See, also: Voss v. Reyburn, 104 Ark. 298, 148 S. W. 510; Norton v. Bacon, 113 Ark. 566, 168 S. W. 1088; Bell v. Phillips, 116 Ark. 167, 172 S. W. 864; Paschal v. Swepston, 120 Ark. 230, 179 Ark. 339; Pope v. City of Nashville, 131 Ark. 429, 199 S. W. 101; Kempner v. Sanders, 155 Ark. 321, 244 S. W. 356; Jarrett v. Baird, 161 Ark. 31, 255 S. W. 564; Selz v. Paving Distriot No. 1 of McGehee, 173 Ark. 245, 292 S. W. 133; Dunbar v. Street Improvement District of Dardanelle, 172 Ark. 656, 290 S. W. 372. Bennett v. Kelley, 179 Ark. 530, 16 S. W. 2d 992.

Holt, J. This appeal comes from a decree foreclosing a deed of trust in the Nevada chancery court. On January 7, 1929, Wash Morgan, and Martha Morgan, his wife, executed a note in the sum of $2,000, due October 15,1929, in favor of E. H. Alsobrook, as trustee for J. M. Stocks. On December 14, 1929, Wash Morgan died and suit was instituted on December 1, 1931, by J. M. Stocks and E. H. Weaver, as substituted trustee, against his widow and heirs at law, some of whom, including appellants herein, Ollie Morg-an and Alvin Morgan, were minors. Service was duly had on all the defendants with the exception of Roy Morgan and his wife, Lessie Morgan, on December 8, 1931. On December 31st, a warning-order was issued for Roy Morgan and his wife, Lessie Morgan. On January 9, 1932, the answer of appellants herein, who were then minors, was filed by Thomas W. Blakely, as attorney for Martha Morgan, mother and statutory guardian of áppellants. The case was heard by the lower court on March 8, 1932, approximately 60 days after the filing of the answer of the guardian, and a decree entered. Among other things, the decree recites that the cause was submitted and the decree rendered “from the pleadings, process, returns, papers, note and deed of trust, and oral testimony taken before the court.” It is further recited in the decree: “That after personal service of process on the said minor defendants herein, Elrey Morgan, Marjorie Lowe, • Alvin Morgan, Ollie Morgan and Mary E. Morgan, the said Martha Morgan, guardian for the said minor defendants, filed, at a previous term of this court, on January 9, 1932, her answer herein, denying all the material allegations in the said complaint, and that all the other defendants have made default. . . . ” The oral testimony is not in the record and has not been brought for Avar d by a bill of exceptions. This appeal was taken August 8, 1938, by the appellants under § 2746 of Pope’s Digest. Appellant urges íavo grounds for reversal of the judgment of the lower court: (1) That the ansAver of the guardian was insufficient in that it did not deny the material allegations of the complaint. (2) That the judgment was premature because, under § 1512 of Pope’s Digest, it was taken less than 90 days after the issues Avere made up. Considering these assignments in their order: First, Ave are asked to determine whether or not the answer of the guardian was sufficient. We hold that it Avas. The guardian in her ansAver specifically denies the execution of the note and deed of trust, that the deed of trust was acknowledged, denies that the rights of dower and homestead were released, denies that the deed of trust was recorded, denies that the trustee named in the deed of trust was dead, or that plaintiff was authorized to appoint another trustee, denies that default was made in the payment of the note or that plaintiff was entitled to a foreclosure or to a judgment in any amount or had paid the taxes for the year 1930. • ' The statute requires denial of every material allegation in the complaint AAdiich may be prejudicial to the defendant. This was the rule laid down by this court in Varner v. Rice, 44 Ark. 236, 244, where it is said: “It is the duty of a guardian ad litem to make a full defense Avithout regard to the truth of the denials as to anything Avhich may be prejudicial to the minor.” We think the record shows that the interests of the minors "were fully protected and that all of the material allegations of the complaint which could possibly be considered as prejudicial to their interests were denied by the guardian in her answer. Coming now to the second assignment, was the decree premature? We hold that it was not. The decree in this case is governed and controlled by § 1512 of Pope’s Digest, which is § 1288 of Crawford & Moses’ Digest as amended by act 37 of the Acts of the General Assembly of 1929. As originally enacted and before the amendatory act 37 of 1929 was passed, this section did not permit the court or chancellor in vacation to set the action for trial on notice to opposing counsel or attorneys ad litem and to try the ease- if the court found thát the proof had been completed at an earlier date. The eases cited by appellant, Sager v. American Investment Company, 170 Ark. 568, 280 S. W. 654; Old American Insurance Company v. Perry, 167 Ark. 198, 266 S. W. 943, and Harnwell v. Miller, 164 Ark. 15, 259 S. W. 387, were all decided under the old section of the statute, 1288 of Crawford & Moses’ Digest, and before the amendment was enacted by the Legislature in Í929, and do not control in this case. According to the record before us, suit was filed December 1,1931, service was duly had on all parties, on January 9, 1932, the answer of the guardian was filed and the case at issue. It' was submitted on March 8,1932, and the decree recites that the submission was, with other things, ‘ ‘ on oral testimony taken at the hearing. ’ ’ There is no bill of exceptions before us. This oral testimony is not in the record. Approximately 60 days intervened ■between the filing of the guardian’s answer and the trial of the case. In a recent case before this court, Burks v. Cantley, 191 Ark. 347, 86 S. W. 2d 34, we held that an attorney ad litem could waive the time for trial and expedite same. This court said: “It is contended that the guardian ad litem had no power to waive the time for trial, and that the decree of foreclosure was prematurely entered. We do not think there is any merit in this con tention. The guardian ad litem filed an answer denying all the material allegations of the complaint. It was not contended then and it is not suggested now that appellant has any defense to the cause of action. We held in Sisk v. Becker Roofing Company, 183 Ark. 101, 34 S. W. 2d 1078, that, under the provisions of § 1 of act No. 37, Acts of 1929, it was not necessary to wait ninety days after the issues are joined in a chancery case to have a trial as provided in § 1288, Crawford & Moses’ Digest. .. . . Appellee could have served notice upon the guardian ad litem and had the case set for trial on the day it was tried. This being true, we see no good reason why the guardian ad litem could not consent to a trial. We said in Frazier v. Frazier, 137 Ark. 57, 207 S. W. 215: ‘It is the duty of the court to protect the interests of the infants, and see to it that their rights are not bargained away by those who represent them. Of course, this does not prevent them from assenting' to such arrangements as are formal merely and which are only done to facilitate the decision of the case. ’ ’ ’ There is nothing in this record to negative the idea that the guardian waived further time. Certainly it does not affirmatively appear that there was no waiver of further time. In the absence of a showing to the contrary, this court must presume, on appeal, in favor of the validity of the finding and judgment of the trial court that every fact necessary to sustain the judgment was proved where evidence adduced at the proper time would justify the court’s ruling. In Sisk v. Becker Roofing Company, 183 Ark. 101, 34 S. W. 2d 1078, this court held: “We must indulge the conclusive presumption that the evidence heard justified the court in all orders made, as the evidence was not brought into the record by bill of exceptions or otherwise.” (Emphasis added.) Also in the case of McKinney v. Demby, 44 Ark. 74, this court said: “In the absence of a showing that there was no other testimony heard at the trial every intendment is indulged in favor of the action of the trial court, and this court will presume that every fact susceptible of proof that could have aided the appellee’s case was fully estab- lislied. Tlie statutory rule of law is that every judgment of a court of competent jurisdiction is presumed to be right unless the party aggrieved will make it appear affirmatively that it is erroneous.” To the same effect see St. L., I. M. & S. Ry. Co. v. Amos, 54 Ark. 159, 15 S. W. 362, and London v. McGehee, 126 Ark. 469, 191 S. W. 10. American Jurisprudence, Yol. 3, p. 490, § 924, lays down the rule as follows: “The inference which the law raises is'that every court does its duty and does right, and unless the record shows something to the contrary, it will he presumed that the lower court acted wholly within the law, that the decree or judgment was made upon proper grounds, that that which ought to have been done was in fact done by the court below, and that the court below applied the law correctly; the appellant must show error. It should not be presumed that the court attempted to do something which under the practice it could not properly do.” The record fails to disclose in this case any defense that these minors might have had to the foreclosure suit, and that their rights have been prejudiced in any manner. We are, therefore, of the opinion that the decree of the lower court should not be disturbed, and its judgment. is, accordingly, affirmed.

'Baker, J. There is an' elaborate record made in this case wherein the appellant is referred to as the Motor Truck Transfer, Inc., and also is sometimes mentioned under the name of the manager, Mr. Garins. This appellant had been operating motor truck lines for a period of about seven years under a special permit during the whole time. The special permit was one under which the appellant was authorized to handle or move heavy machinery arid building materials. There is much in the record that shows that this appellant was perhaps better fitted or equipped to handle extremely large tanks, heavy road machinery and heavy or extraordinary bulky farm machinery. Without attempting to quote from the proof, it may be said that the service of the appellant company to its particular customers was generally satisfactory and the appellant, perhaps, did a considerable volume of business. During the last part of the period that it was operating, it handled all kinds of commodities found ready for transport throughout the territory in which it operated. Mr. Garms himself says that he was serving other motor companies or carriers by taking oft of them the hauling of heavy articles. He was asked if the reason he did not engage in the transportation of other articles was because he had only a special permit and he stated that that was the reason for the injunction and why he had applied to the commission, asking for a permit and saying that “I want to abide by the larv and meet the law and I want to be so they can’t injunction me on some other terms, and if I don’t haul general commodities it will be impossible to haul special commodities, and so far as I can see if I am to haul everything it would be general commodities. I didn’t haul just one thing for one man. They were busy — hundreds of them — and couldn’t get here — that wants my service. I could get lots of letters to that effect.” There may have been, and perhaps was, a demand for the kind of service rendered- by Mr. Garms’ corporation. Our attention is called to the order made by the corporation commission which was sustained upon appeal to the circuit court. The provisions of law under which these appeals may be prosecuted are such that upon trial of the matters in issue upon the appeal from the corporation commission the circuit court is in no manner bound by the order of the commission and upon appeal from the circuit court, the matter is presented here upon the. record made before the corporation commission, according to §§ 2019 and 2020, Pope’s Digest, for trial of the same issues de novo and the proceeding is not essentially different from the rules of law in regard to appeals from chancery court decrees. Leach v. Smith, 130 Ark. 465, 197 S. W. 1160; Bryant v. Edgmon, 192 Ark. 20, 90 S. W. 2d 994. The legal effect of these provisions in regard to appeals is that as to the substantial rights of the parties we shall not he influenced or governed by the orders of the commission or judgment of the circuit court to reverse which appeals are presented. ■ There can be no fair understanding, however, of the issues presented here unless it is recognized that the matter before us is not a mere petition for a license to operate. The court may not issue or grant licenses. It is a presentation of the issues to determine whether the commission maldng the order denying the license to the Motor Truck Transfer, Inc., should be sustained or overruled. That is a matter that has been argued here. Appellant argues that the commission was arbitrary: that its action was an unwarranted abuse of its discretion and that we should so declare and direct, by proper order, that proper license be issued to the appellant. The appellees in this case are made up of different parties who have intervened, asked to be made parties to the proceeding, and who have offered substantial testimony to the effect that the territory that the Motor Truck Transfer proposes to serve is already amply provided for by the numerous truck organizations operating therein. The proof shows that they are operating only about 40 per cent, to 60 per cent, capacity and could take care of a considerably larger volume of business, if it were offered. Without any attempt at an analysis of all this volume of testimony we think our conclusion may bo stated in a very shoi't form. The only substantial evidence that it is a matter of convenience and necessity that license should be granted to the appellant company is the fact that Mr. Garms, as the manager, through experienced and trained employees, is most likely better fitted than anyone else to handle heavy machinery and like products than any of the other motor transport organizations. It was licensed to handle and transport such commodities under the special license under which it operated before this litigation was started. It does not follow, however, as a necessary conclusion that license should be granted to appellant. Others might easily prepare themselves to handle this particular class of freight or commodities. It is shown by substantial evidence and not denied that the appellant company, prior to the time of this litigation, was not confining itself to the class of commodities which it was licensed to move or haul, but was seizing upon and soliciting every class of freight usually transported in the community in which it operated. This it did not have a right to do under the special permit. To, that extent it did not obey the rules and regulations of the commission, but refused to be bound by them. Moreover, for some reason it operated'for a time without the bond or insurance contract required to be carried by it. Though repeatedly, notified by the commission to furnish or supply such bond or insurance, it refused, or, at least, failed to do so. This was the public liability insurance that every motor truck operator is required to provide, when it begins operation, or, at least, within a reasonable time thereafter. The Motor Truck Transfer refused to be bound by fixed tariffs and Avould not, or, at least, did not file with the corporation commission, as required by its rules any tariff for freights, to be charged, and it was the arbitrary action or refusal to observe these salutary rules or regulations that caused the appellant company to be cited for a hearing. The fact that the appellant company did all these things is not excused by any explanation made: No emergency is shown, nor does the appellant company offer any other .excuse. There is no contention by it that such regulations are arbitrary, illegal or unenforceable. Hence, there is no necessity of a consideration,of such rules and regulations except to say that such rules and regulations are generally made and enforced-in the interest of the public as a primary matter and for the protection of other carriers of like kind whose business is subject to the same form and character of regulation. It should take no argument to determine that those engaged in this class of business were entitled to a substantial return upon the investment made, for the labor employed, and as compensation for ability to create and properly operate a public service organization. Regulation is necessary when public roads are used by these transportation agencies. They were not built as arteries for the moving of freight alone, nor may they be used freely on all occasions and everywhere by those who refuse to observe the rights of others, on the same public highways. Without attempting to be too critical of the conduct of others, it appears to us that the only arbitrary action that has been taken in this whole controversy arises out of the conduct of Mr. Garms and his corporation in their refusal to be bound by the regulatory provisions of the commission. The right to make rules and regulations necessarily implies a power that may be exercised for their enforcement. It is argued here that the appellant company has made rather heavy investments to perform the particular service which it has heretofore been licensed to do; that the action of the commission in refusing to issue a new, and what we presume is desired, general license is not only arbitrary, but it is the taking of property, or what amounts to the same thing, a destruction of appellant’s property, to refuse to permit it to go on. We do not think so. Most probably had the appellant company been obedient to the rules and regulations made for the benefit of the public and for its own protection, it might yet have been operating. If its property has been sacrificed it has been the victim of its own conduct. We do. not haye to go as far in deciding this case as the court did in supporting the commission’s rules and regulations in the case of St. L., I. M. & S. Ry. v. State, 99 Ark. 1, 136 S. W. 938. There the court merely determined that, though it might differ with the commission, it would support the commission’s order unless it was clearly arbitrary and unreasonable. We recently had occasion to consider a matter similar to the one here presented. Jernigan, Bank Commissioner, v. Loid Rainwater, 196 Ark. 251, 117 S. W. 2d 18. While this matter covers an entirely different economic activity, it involved the regulatory power and provisions of the Securities Division of the Banking Department and in that respect is similar to the matter under consideration. The petition for the granting of license called for the exercise of discretion reposed in the bank commis sioner. We there said: “. . . He, in the first instance, and we, upon appeal, may review this action to determine whether there has been an arbitrary decision, or an abuse of discretion, but we should regard and uphold the decision of the Securities Division of the State Banking Department unless it be made to appear that there was an abuse of discretion or an arbitrary decision.” The authorities there cited, we think, support the conclusion we announced. The announcement just quoted.is a proper criterion for our action here. The judgment of the court is sustained and affirmed.

James H. Pilkinton, Judge. On September 5, 1955, James Ruth and wife were the owners of the Northeast Quarter of the Northwest Quarter (NE Vk NW Vk) of Section Twenty (20), Township Six (6) South, Range Twenty-Six (26) West, in Grant County, Arkansas, containing 40 acres, more or less. On that date they borrowed $1,055.00 from Dr. L. Routen and wife. Mr. and Mrs. Ruth executed a warranty deed to the Routens conveying this land. However, the parties to that transaction also executed a Sales Agreement under which the Ruths would be permitted to repurchase the land; and in connection with this agreement, Mr. and Mrs. Ruth executed an installment, note for $1,050.00 in favor of the Routens. By November 4,1960, the Ruths were in serious default under the terms of the note and repurchase agreement. Dr. and Mrs. Routen were demanding full payment of the principal and interest then due totaling $1,253.73 which the Ruths could not pay. They were threatened with eviction. OnJanuary 12,1961, J. B. Lites and wifepaid$l,264.30, the amount then due by the Ruths, to Dr. and Mrs. Routen; and the Routens conveyed the forty acres to Mr. and Mrs. Lites, who were friends of Mr. and Mrs. Ruth and resided near them. In connection with transaction, Mr. and Mrs. Lites executed a Sales Agreement under which Mr. and Mrs. Ruth would be permitted to repurchase the land from them within a two year period on the terms and conditions set out in such instrument and in a promissory note, dated January 12,1963. The Ruths continued to reside on the land. Mr. Lites recorded the deed, and paid the back taxes on the land. He also had the property transferred to his name on the tax books of Grant County, and has paid the taxes each year since 1961. The Ruths made no payments on the note to Mr. and Mrs. Lites, and made no effort to repurchase the land prior to January 12, 1963. In fact they made no real effort to do anything about reacquiring title to the property until this suit was filed on September 12, 1973, a lapse of over ten years. In bringing this suit, Mr. and Mrs. Ruth alleged they were indebted to Mr. and Mrs. Lites, and claimed that the deed they executed to the Lites in 1961 should be declared a mortgage. They seek to redeem the land by paying whatever amount is now due Mr. and Mrs. Lites. An answer was filed denying the allegations of the complaint. The answer also alleged that any agreement of repurchase between the parties had expired on January 12,1963, and that the Ruths were barred by laches from attempting to enforce the repurchase agreement at this late date. The Lites later filed an amended answer and requested that title to the land be quieted in them, and for a Writ of Possession inasmuch as the Ruths were still living on the land. After an extensive trial, the Chancery Court ruled that the warranty deed ¿xecuted by L. Routen and wife to J. B. Lites and Virginia C. Lites, his wife, dated January 12,1961, was an absolute conveyance and not a mortgage; that the Ruths had failed to comply with the terms of a separate agreement to repurchase the land from the Lites; that Mr. and Mrs. Ruth have no right, title or interest in.the property. The complaint was dismissed. The Ruths have appealed and this case has been assigned to the Arkansas Court of Appeals pursuant to Rule 29(3). Two issues are presented on appeal, (1) whether the deed dated January 12,1961, constitutes a mortgage, and (2) if it was in fact an equitable mortgage, whether appellants are barred by laches from redeeming the land. The general doctrine prevails in this state that a grantor may show that a deed absolute on its face was intended only to be security for the payment of a debt and thus a mortgage. Hill v. Day, 231 Ark. 550, 331 S.W. 2d 38 (1960). Whether any particular transaction does thus amount to a mortgage or a sale with a contract to repurchase must, to a large extent, depend upon its own circumstances. The question ultimately turns, in all cases, upon the real intention of the parties, as shown by the writings or as disclosed by extrinsic evidence. The rule is undisputed that to show a deed is not an absolute conveyance, but was intended to be a mortgage to secure a debt, the evidence must be clear, satisfactory and convincing. Matthews v. Stevens, 163 Ark. 157, 259 S.W. 736 (1924). In practice the line of demarcation between a mortgage and a sale with right of repurchase is shadowy, and it is frequently a matter of great difficulty to determine to which category a given transaction belongs. In reviewing the decisions of courts of chancery on questions of this character, great weight should be given to the opinion of the trial court as the Chancellor may be apprised of the existence of circumstances which but dimly appear to us from an examination of the record alone. Ehrlich v. Castleberry, 227 Ark. 426 at 431, 299 S.W. 2d 38 (1957). The trial court had an intimate knowledge of this case and of the character and situation of the párties. The learned chancellor found that the instrument, in light of the attendant circumstances and the evidence adduced, was in fact an absolute deed of conveyance, and was not a mortgage. The trial court concluded that this was the intention of the parties, and we are unable to say, after a careful consideration of the record before us, that the chancery court has wrongly decided that issue. However, there is one modification wihch must be made in the decree of the trial court. The testimony is undisputed that Mr. and Mrs. Lites have permitted Mr. and Mrs. Ruth to continue to live in the house on the premises. In fact, Mr. Lites testified that they had agreed, many years ago, that Mr. and Mrs. Ruth might make their home there as long as they live and told them so. Mr. Lites expressed the agreement in the following words: “Q. You testified, that you made, “a gentleman’s agreement”, to let him live there. A. We did. Q. Why did you do that? A. Well, it’s been brought out very vivid, that we have been friends all down through the years, and I didn’t have malice in my heart to want to put him out of a home. And when we made this agreement, that was the agreement that he had the two years to pay it back and, if he didn’t the property, in turn, would be mine. “If you do that and don’t pay it off, you can have a home as long as you live there, and I will not put you off’. It is evident that Mr. and Mrs. Ruth relied on that understanding, and such agreement may explain why appel lants did not pay the note and comply with the agreement to repurchase. In any event, equity requires Mr. and Mrs. Lites to honor their agreement and permit Mr. and Mrs. Ruth to have a home on this land as long as either of them lives and desires to reside there. The statute of frauds was not raised as a defense to such agreement. The decree of the chancery court is modified accordingly and, as so modified, is affirmed. The case is remanded for entry of a modified decree consistent with this opinion. Supplemental Opinion on Denial of Rehearing delivered December 12, 1979 The record in this case disclosed that appellees had promised appellants a home on the forty acres of land in question as long as appellants lived in event they could not repay the debt, and appellees retained the land. It was evident to this court on appeal that Mr. and Mrs. Ruth relied on that understanding, and the existence of such an agreement may explain why appellants did not pay the note and comply with the agreementfor repurchase. In any event, in considering this appeal de novo, we held that equity required appellees, under the circumstances, to honor their agreement and permit Mr. and Mrs. Ruth to retain a home on this land as long as either of them lives and desire to reside there. As so modified, the decree of the Chancery Court was affirmed; and the case was remanded to the trial court for entry of a final decree not inconsistent with our opinion. Appellees have now filed a petition for rehearing claiming that the original opinion of this court should be clarified to declare definitely that the rights of appellants to reside on the land is confined to the dwelling, and an appropriate small amount of land only immediately surrounding the house. Appellees certainly know what they promised the appellants. If any dispute remains between the parties, or should arise later, the Chancellor would be in a better position to deal with such matters than this court, and the Chancery Court should do so first. The present record before us does not fully disclose how much of this land is being used by appellants, whether the land is farm land, timber land, or both. The record is silent as to the exact location of the dwelling on the land, whether the dwelling has access, whether the home site is fenced, and many other details which a court would need in order to pass on the suggested items of possible future dispute which might arise. We view our opinion as clear, and the mandate to be issued on it as sufficient in scope to enable the trial court to properly dispose of any issues which might arise between the parties in the future. Rehearing denied.

James H. Pilkinton, Judge. The decedent, Carrie Harris, was struck and killed by an automobile being driven by Mrs. Gail Damron. The accident happened at approxi mately 8:45 a.m. on March 23, 1977, as Mrs. Harris was attempting to cross U.S. Highway 270 in front of her house. The allegations of negligence were that Mrs. Damron was speeding in that she was traveling in excess of 55 miles per hour in a 45 mile per hour speed zone; and, that she failed to exercise reasonable care under the circumstances. Recovery was sought for funeral expenses of the decedent, and for mental anguish on behalf of the surviving adult children of the deceased. The defendant filed an answer admitting that Carrie Harris was struck by an automobile driven by her on the highway in question, but Mrs. Damron denied all other material allegations of the complaint. In addition, Mrs. Damron claimed that the death of Carrie Harris was solely and proximately caused by the negligence of Carrie Harris. The issues were tried before a jury. A verdict was returned for the plaintiff and the jury awarded damages of $850.00 to the estate of Carrie Harris, but no damages were awarded to her adult children for mental anguish. The plaintiff below appealed to the Arkansas Supreme Court and the case has been assigned to the Arkansas Court of Appeals under Rule 29(3). I. Appellant first contends that the trial court erred in refusing to admit plaintiffs offered exhibits No. 7, 8, 9, 10 and 11. The evidence shows that Mrs. Harris was 80 years old, but in good health for a person that age. She lived on the south side of Highway 270. At the time of the occurrence, Mrs. Harris was leaving her house and going across the highway to a relative’s house. The Harris home was the first house east of the Highway 270 and Highway 104 junction and is surrounded by trees. The state trooper who investigated the accident testified that if a person was not looking for a house, or did not glance in that direction, you might miss the Harris house and not know it was there. No one knows whether Mrs. Harris was attempting to walk or run across the highway. The accident occurred before the Highway 65 four lane was opened in Jefferson County, and there was a lot of extra Highway 65 traffic on Highway 270 at the time. The area of impact was established by debris which was approximately 500 feet east of the Highway 104 junction. Mrs. Damron testified she was going between 55 and 60 miles per hour when she went through the 104 junction. She did not see Mrs: Harris, and the Damron car struck Mrs. Harris killing her instantly. The body of Carrie Harris was found in the northbound shoulder of Highway 270 approximately 94 feet and 4 inches from the area of impact. A severed limb from her body was found 166 feet and 1 inch from the area of impact. The court admitted plaintiffs Exhibits 1 through 6, inclusive. Plaintiffs Exhibit 1 was a diagram of the accident scene. Plaintiffs Exhibit 2 depicts the front view of Mrs. Damron’s vehicle, after the impact, as parked on the eastbound shoulder of the highway. Plaintiff’s Exhibit 3 is a photograph showing the eastbound view of the highway indicating where the body of Mrs. Harris came to rest. This photograph also shows some debris. Plaintiff’s Exhibit 4 shows a close up front view of the Damron vehicle and indicates the damage done to the vehicle because of the impact. Plaintiffs Exhibit 5 is a westbound view showing the position of Mrs. Harris’ body on the north shoulder of the highway. Exhibit No. 5 also shows the terrain along Highway 270 in the area of the accident. Plaintiffs Exhibit 6 is a statement of the funeral bill totaling $1699.45. In addition, appellant had offered Plaintiffs Exhibits 7, 8,9,10 and 11. The trial court refused to permit the introduction of these photographs on the basis that the prejudicial effects of them would outweigh any evidentiary value that these photographs might have. Appellant has not reproduced and made a part of his abstract the photographs which were offered as Exhibits 7 through 11, which the court refused to admit. This court would be justified in refusing to consider appellant’s argument under Point I because of the failure to comply with Rule 9(d) of the Supreme Court and Court of Appeals of the State of Arkansas. Obviously the court is handicapped in passing on the admissibility of photographs it can see only by searching them out in the transcript. Be that as it may, from the transcript it appears that the trial court was correct in excluding the photographs in question. None of the offered photographs which the court refused to admit tended to prove anything in dispute. Appellant’s Exhibit 7 shows the severed limb of the decedent covered by some articles of clothing. Exhibits 8,9,10, and 11 are somewhat gruesome pictures taken by the Coroner, showing a severed limb and decedent’s body in the morgue. The investigating officer testified fully and at length about the accident scene. Appellee admitted that her car struck and killed Mrs. Harris. The evidence established without dispute that one of the decedent’s limbs was severed in the accident. In view of the other evidence introduced, including the exhibits which were admitted, the court was correct in excluding these photographs on the basis that the prejudicial effects of them would outweigh any evidentiary value that the excluded photographs might have. Ark. Stat. Ann. § 28-1001, Rule 403 (Repl. 1979). The admissibility of such photographs addresses itself to the sound discretion of the trial court. We do not disturb the ruling of the trial court unless there is an abuse of discretion. Wheeler, Adm’x v. Delco Ben, 237 Ark. 55, 371 S.W. 2d 130 (1963); McGeorge Contracting Company v. Mizell, 216 Ark. 509, 226 S.W. 2d 566 (1950). II. Appellant next árgues that, the judgment on the jury verdict is contrary to the law and evidence of the case. Appellant says there is no substantial evidence to support the verdict. We find no merit in this argument. The case was fully tried and the issues were submitted to the jury under instructions that are not questioned. The jury found for appellant and, by general verdict, placed a greater part of the negligence on Mrs. Damron. The verdict for the estate in the amount of $850.00 damages, instead of the full amount of the funeral bill, indicates that the jury also found Mrs. Harris guilty of some negligence. No argument is made that the jury was in any way improperly- instructed on the measure of damages, or on any other issue. Certainly there is substantial evidence to sustain this jury verdict, and no grounds exist to disturb it on appeal. McWilliams v. R & T Transport, Inc., 245 Ark. 882, 435 S.W. 2d 98 (1968). See also Love v. H. F. Construction, 261 Ark. 831, 552 S.W. 2d 15 (1977). III. Appellant argues finally that the failure by the jury to award damages for mental anguish to the adult children was contrary to the evidence and the law in this case. The jury was properly instructed on the issue of mental anguish as specified in AMI 2215. Based on this record, the jury was entitled to find that none of the adults had suffered more than the usual and normal grief attendant upon the loss of a loved one. Eisele, Adm’r v. Beaudoin, 240 Ark. 227 at 231, 398 S.W. 2d 676 (1966). See St. Louis S.W. Ry. Co. v. Pennington, 261 Ark. 650 at pp. 670-683, 553 S.W. 2d 436 (1977), for a complete discussion of the issue of mental anguish in Arkansas. Affirmed.

Marian F. Penix, Judge. This case was appealed to the Supreme Court of Arkansas and by that Court assigned to the Arkansas Court of Appeals pursuant to Rule 29(3). Appellees were granted summary judgment and from that judgment comes this appeal. The appellees do business as Hardwick Bros. Lumber Co. at Malvern. They sold home decoration articles and services to the appellants, the Millers, at Hot Springs. The Millers failed to pay the $4,392.11. Hardwick Bros, brought suit and attached to the complaint was an affidavit stating amount was owed. The Millers filed a general denial. Hardwick Bros, filed Interrogatories and Requests for Admission, which were answered. The Millers admitted there was a contract and did not dispute the contract price. However, the answers to the interrogatories did set out that not all of the goods received met the terms of the contract and there was at least partial lack of consideration. The affidavit of Miller specified those items which were not provided and those which were not satisfactory. From a pretrial hearing the court’s order granted Millers “thirty days to amend their answer to assert affirmative defenses and to more responsively plead.” Hardwick filed motion for Summary Judgment alleging no genuine issue as to any material fact. Millers filed a response to the motion for Summary Judgment in which they asserted their Responses to the Interrogatories and Requests for Admissions adequately outlined the defenses which would be relied on at trial; namely, lack of consideration. The affidavit attached to the Millers’ response to Hardwick’s motion for Summary Judgment specifically set out the items with which Millers were dissatisfied and which did not meet the terms of the contract. The court granted Hardwick’s motion for Sum mary Judgment. The judgment reads “ . . . the court considered the pleadings, the interrogatories, request for admissions , and answers thereto, the affidavits in support of and in response to the motion ...” Whether the court based its finding on its assessment of the insufficiency of the pleadings or on the review of all the documents in the file, we find the decision to be erroneous and must be reversed. A Summary Judgment is an extreme measure. Justice is better served when cases are tried on their merits. Pleadings are for the purpose of informing all the parties what the issues are. Where there is no surprise or substantial prejudice the court can always, and often does, treat the pleadings as amended, to conform to the proof. Defects in pleadings are to be disregarded unless they substantially affect the rights of the adverse party. A variance between the pleadings and proof is not material unless it has actually misled the adverse party to his prejudice. Ark. Stat. Ann. § 27-1155 and 27-1160 (Repl. 1962). While the general denial did not apprise Hardwick of the Millers’ defense, the response to the interrogatories provided this notice. These responses, which become a part of the record without objection, were evidence to be considered by the judge. Once these became evidence, the pleadings are treated as amended to conform to the evidence. Bonds v. Littrell, 247 Ark. 577, 446 S.W. 2d 672 (1969). At the outset the appellees insist that Bonds cannot rely upon the asserted collateral agreement, because he failed to plead that defense in his answer. It is true that Bond’s answer to the complaint was merely a general denial, plus special pleas not now relevant. But in response to the plaintiffs’ requests for admissions of fact Bonds made this statement under oath: ‘‘Defendant admits that a written memorandum of said agreement was made and that a copy is attached to the complaint . . . Defendant states, however, that said agreement was contingent upon the defendant’s obtaining the purchase money from the Houston Milk Producers Credit Union.” In the face of that assertion, and without rebutting it, the plaintiffs filed their motion for summary judgment. Under the Federal Rules of Civil Procedure, from which our summary judgment statute (§ 29-211) was copied, the better view is that affirmative defenses may, at least in some situations, be raised by affidavit as well as by answer. We agree with Moore’s statement of the two views: “There is authority that defenses not pleaded in defendant’s answer may not be raised by affidavits on his motion for summary judgment. This is highly technical and illiberal. Either the answer should be deemed amended to conform to the proof offered by the affidavits or a formal amendment permitted, the affidavits considered, and the motion for summary judgment decided under the usual rule pertaining to the adjudication of summary judgment motions.” 6 Moore’s Federal Practice § 56.11[3] (1966) See also Warner v. Warner, 221 Ark. 939, 256 S.W. 2d 734 (1953); Smith v. Moschetti, 213 Ark. 968, 214 S.W. 2d 73 (1958). By the responses to the interrogatories as well as the counter-affidavit, the Millers raised the defenses of lack of consideration or breach of warranty. Ark. Stat. Ann. § 29-211 provides: The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact. . . . Upon consideration of the pleadings, the responses to the requests for interrogatories, together with the affidavits, we believe there to be a material issue of fact. Hughey v. Bennett, 264 Ark. 64, 568 S.W. 2d 46 (1978); Purser v. Corpus Christi State National Bank, 258 Ark. 54, 522 S.W. 2d 187 (1975); Ashley v. Eisele, 247 Ark. 281, 445 S.W. 2d 76 (1969); Mid-South Insurance Co. v. First National Bank of Fort Smith, 241 Ark. 935, 410 S.W. 2d 873 (1967). Reversed and remanded. Newbern and Pilkinton, JJ., concur.

Marian F. Penix, Judge. Appellant Davis appeals from a jury conviction on Aggravated Robbery and a sentence of 25 years. He appeals also from a sentence of an additional two years upon the revocation of probation. Davis was charged with the robbery of the First Na tional Bank Main Branch of Camden, Arkansas which occurred April 23, 1979. OnJanuary31,1979, Davis pled guilty to a charge of Criminal Use of a Prohibited Weapon. He was fined $100 and placed on five year probation. A Petition for Revocation of Probation was filed and scheduled to be heard April 25, 1979. Davis’ court appointed counsel moved for a continuance and it was granted. On May 4, 1979, Davis’ attorney filed a Notice of Defense stating he intended to raise a defense to the bank robbery charge and to the alleged violations of conditions of probation, his lack of capacity as a result of mental disease or defect, to conform his conduct to the requirement of law and to appreciate the criminality of his conduct. On May 4, the trial court ordered Davis committed to the Arkansas State Hospital for observation and examination. On May 22, Davis filed a Motion for Continuance to enable his counsel to acquire medical information and records relative to Davis’ prior commitment in a mental institution in Buffalo, New York in January, 1978, and because no report had yet been issued by the Arkansas State Hospital. Before trial, Davis received the State Hospital report. On June 22, 1979, Davis was convicted. I Davis contends there was error in the court’s denial of the Motion for Continuance to secure the medical records from New York and to secure records of Davis’ military service. Davis contends he was forced to trial without proper preparation. Not guilty by reason of mental disease or defect must be proven by a preponderance of the evidence. Davis’ attorney received a discharge diagnosis summary from New York which described Davis’ “acute schizophrenic episode”. It noted that Davis had been brought to the New York Medical Center following his appearance at a TV station where he posed as an FBI agent. It noted that Davis did this because voices told him to do so. It also pointed out Davis’ thought content was delusional and he complained of hearing voices and seeing things. The New York doctors were the only ones who examined and treated Davis for a condition where Davis complained of committing an unlaw ful act upon the command of voices. Davis’ attorney sought to obtain the New York hospital’s supporting data and basis for its diagnosis as noted in the discharge summary. Because of certain required procedures Davis’ attorney had not yet received the data and records. The trial court refused to allow a continuance, finding the reports of the Arkansas doctors were sufficient for a determination by the jury. The Arkansas doctors’ testimony was that Davis was without psychosis. Also, the court found whatever the New York reports contained would be added evidence only to that already introduced and were unnecessary to Davis’ defense. The court noted that on the issue of insanity Davis had the State Hospital report of May 24, 1979 which indicated he was without psychosis, able to assist in his defense and probably sane at the time of the offense. Further, Davis had the reports from the South Arkansas Mental Health Center stating on August 19, 1977 and December 15, 1978, Davis was without psychosis and able to assist in his defense. With the additional discharge summary from New York, the trial court concluded there was adequate medical information on the issue of insanity and therefore denied the motion for continuance. Factors which must be considered by trial courts in exercising their discretion in granting or denying a motion for continuance are the probable effect of the testimony or evidence, the likelihood of procuring the evidence, and its relevancy. Worley v. State, 259 Ark. 433, 533 S.W. 2d 502 (1976). There was no showing if the evidence did exist and was obtained that it would be relevant to the issue of Davis’ sanity at the time of the offense and at trial. Davis relies on Westbrook v. State, 265 Ark. 736, 580 S.W. 2d 702 (1979). However, in the instant case, Davis was not denied crucial evidence. In Westbrook, the defendant had asked for records from the State Hospital relative to two prior commitments. He had been granted the same on paper but had not received the records at the time of trial. Davis had in his possession all the state medical records pertinent to his mental condition. He was not denied evidence which was crucial to his defense. Here there is no showing that there was additional material evidence obtainable. We cannot say the trial court abused its wide discretion in refusing a further continuance. II Davis contends the court erred in denying Davis’ challenges for cause against two prospective jurors. The prosecuting attorney was questioning the prospective juror Willie Arnold. Mr. Arnold stated in reference to finding Davis guilty or innocent he (Arnold) would “go along with the bunch’ ’. Davis contends that under the rationale of McCree v. State, 266 Ark. 465, 585 S.W. 2d 938 (1979), Mr. Arnold should have been excused. In McCree, the Supreme Court held it was proper for the trial court to excuse for cause a prospective juror who indicated he was unequivocally opposed to the death penalty. In that case the state was seeking the death penalty. In reviewing the entire exchange during voir dire it appears Mr. Arnold misunderstood what was required of him as ajuror. The court explained to him what his duty was and determined Arnold would in fact stick by what he felt was right regardless of what the other jurors thought. In questioning the prospective juror Sylvia Nutt, Ms. Nutt stated she could not definitely say she would not be biased because she herself had been a victim of a theft. In response to the trial court’s questions, she did indicate, she would try her best to be fair and.impartial to both the State and to Davis, and there was no indication she had already made up her mind as to Davis’ guilt or innocence. There is no evidence she had made a pre-judgment. Our Supreme Court has allowed large discretion in the trial court’s determination of a prospective juror’s bias or prejudice as affecting his qualifications to serve. The question of the impartiality of the jury is a judicial question of fact within the sound discretion of the trial court. Strode v. State, 257 Ark. 480, 517 S.W. 2d 954 (1975). III Davis alleges error in the court’s answer to the jury on its query during deliberations. Prior to rendering a verdict the jury returned and asked: The jury is concerned that if by chance the young man is incarcerated, is it possible he will receive some form of psychiatric help while he is in prison? The court’s response was: All right, now, ladies and gentlemen, the only way I can possibly answer that question is that the Department of Corrections is operated by a Board of Corrections, which is a part of the executive branch of government. The judicial branch of the government, or the Courts, have no control over the Department of Corrections. The Department of Corrections of course has the authority to administer such medical or mental services as they may be deemed the inmates might need. That’s as far as I’m permitted by law to answer that question, because I could give you no guarantee one way or the other, certainly. We find nothing in the court’s response which could be construed as erroneously invading the province of the jury. See Moore v. State, 231 Ark. 672, 331 S.W. 2d 841 (1960). Finding no reversible error, we affirm. Affirmed. Howard and Newbern, JJ., dissent.

Marian F. Penix, Judge. This case was appealed to the Arkansas Supreme Court and by that court assigned to the Arkansas Court of Appeals pursuant to Rule 29(3). The appellees, Murphys, brought an action for specific performance of a contract to purchase certain real property. The Court decreed specific performance and held the appellant Ms. Foshee was bound by the terms contained in the mortgage and note prepared by her attorney, delivered to Murphys for execution and tender at closing. Ms. Foshee appeals. On March 22, 1978, the Murphys made an offer to Foshees to buy real estate for $100,000 with $20,000 in cash and $80,000 payable over 25 years at seven and one-half percent. The Foshees rejected the offer and extended a counter-offer of $110,000 with $25,000 in cash and $85,000 payable over 25 years at eight and one-half percent interest and incorporated by reference all other terms of the Murphys’ original offer. The Murphys accepted the counteroffer. The Foshees’ listing agent prepared a “clean-up” offer and acceptance which the Murphys signed. On March 23, the Foshees refused to sign because of dissatisfaction with the size of the monthly payment which a 25 year amortization would generate. The Murphys agreed to amortize the note over a 20 year period rather than a 25 year period and initialed such provision which was inserted into the “cleanup” offer and acceptance document. Ms. Foshee readily signed. Mr. Foshee refused to sign, saying the monthly payments were still too small. On March 27, Mr. Foshee related to his son, Wayne, they had sold the property. On April 16, Mr. Foshee died. Ms. Foshee delivered the abstract of the property to her agent for recertification and her attorney-prepared a note, mortgage and deed and set the closing date for May 18, 1978. Ms. Foshee refused to consummate the transaction because she discovered certain lots contained in the description which she contends she did not intend to sell. On June 7, the Murphys filed suit'asking for specific performance, and for correction of a mutual, mistake within the contract. In her July 6 answer,. Ms. Foshee alleged she was not bound to the contract because of the.death of Mr. Foshee. I Ms. Foshee contends there is error in the court’s finding a contract existed between the parties. The property was held as an Estate by the Entirety by the Foshees. Ms. Foshee contends the March 23rd Offer and Acceptance with the amendment changing the time of amortization which was initialed by the Murphys constituted a new offer which effectively set aside thé counter-offer of March 22. She contends this is a substantial change in the terms of the March 22nd counter-offer, especially to elderly persons who must depend upon the monthly payment for living expenses. She also contends the initialed offer and acceptance required it be accepted by the Foshees within one day. Mr. Foshee did not accept the offer within the required one day. She contends only one party owning the estate by the entirety signed the offer and acceptance and cites the general rule found in 91 C.J.S., Vendor and Purchaser, § 29(b)(2) pp. 879-880. Where a conveyance of certain property can be made only by the concurrence of two or more persons an offer to purchase must be accepted by each of them. Ms. Foshee contends the offer lapsed March 25, 1978 and could not have been enforced against Mr. Foshee had he lived. The Murphys contend Mr. Foshee would have been bound to his contract had he not died. They contend the Foshees’ counter-offer was accepted by the Murphys arid Mr. Foshee was obliged to sign the “clean-up” document which was drawn up to accommodate the Foshees. The Murphys also contend an owner of less than complete or good title to land may enforce his contract for sale if he is able to give good title on performance date.. The case on which the Murphys rely is Hood v. Hunt, 232 Ark. 591, 339 S.W. 2d 97 (1960). In that case, Mr. Hunt, the seller, signed the offer and acceptance, but Ms. Hunt did not. Later the Hunts both signed the deed which was tendered to the buyers, but refused to go through with the transaction. The court, in granting specific performance, held: Based upon these facts, we are bound by our rule it was sufficient that Hunt was able to make a good conveyance any time before the decree for specific performance was rendered. Even if Mr. Foshee could not have been bound by the contract, Ms. Foshee can be bound. She signed the contract and was the sole owner of the property at his death. She was able to make a good conveyance before the court decreed specific performance. Either spouse owning property by the entirety may transfer his or her interest, although it cannot thus affect the interest of the other. At the closing date, Ms. Foshee was obliged to convey all of her interest as she had agreed. This would have been the case whether Mr. Foshee was then living or not. Since Mr. Foshee died April 18,1978, Ms. Foshee was the sole owner as survivor of an estate by the entirety and had complete ownership to convey. We find a contract did exist between the parties. II Ms. Foshee contends the court erred in refusing to rescind the contract for a unilateral mistake. The initial offer and acceptance, the counter-offer, and the “clean-up” offer all listed unimproved lots which Ms. Foshee now claims she and her husband were unaware of being included in the contract to sell. A unilateral mistake is a subjective matter and the rule in Arkansas is a court will not reform or rescind a contract involving a unilateral mistake except where fraud is involved. Gall v. Union National Bank of Little Rock, 203 Ark. 1000, 159 S.W. 2d 757 (1942). The Murphys were shown the unimproved lots by the Foshees’ listing agent and it was represented to them that they were included with the improved lots being offered for sale. The lots were listed in all of the documents which passed between the Murphys and the Foshees. Ms. Foshee’s own attorney caused them to be listed in the mortgage and deed which he prepared. Ms. Foshee admits not having read the documents she signed, although she admits having the opportunity to do so. Ms. Foshee would have us apply the exception to the Unilateral Mistake Rule. Such exception being in the instance when an agreement is oppressive or unconscionable. We do not find elements of unconscionableness in the particular circumstances of this case. We find no error in the court’s refusing to rescind the contract for a unilateral mistake. Ill Ms. Foshee alleges the court erred in expanding the contract to include the terms of the proposed mortgage and note. Ms. Foshee’s attorney prepared a mortgage and promissory note and caused them to be mailed to the Murphys for their execution. The Murphys executed them and they were tendered at the May 18 closing. Mr. Murphy had some questions concerning these documents and Ms. Foshee’s attorney called him to discuss the matter. After the telephone call, Mr. Murphy was satisfied and proceeded to execute the mortgage and note. Ms. Foshee’s son insisted the closing be held immediately. Quite obviously the Chancery Court had the necessity and the power to require Ms. Foshee to accept the terms of the note and mortgage which were prepared by her own attorney. Without this provision, there would not be a complete settlement of the transaction. This would invite circuity of actions and multiplicity of litigation which equity abhors. Fidelity Deposit Co. of Maryland v. Cowan, 184 Ark. 75, 41 S.W. 2d 748 (1931). Affirmed. Newbern, J., concurs.

Ernie E. Wright, Chief Judge. The Appellant, John Urosevic, appeals from the decree of the Chancery Court of Garland County ordering that he and the appellees, his ad joining landowners, immediately cause a retaining wall providing lateral support to appellees’ land to be restored with the cost to be shared equally between appellant and appellees. The appellees cross-appealed contending appellant should bear all the costs for restoring the retaining wall. The case has been assigned to the Court of Appeals pursuant to Rule 29 (3). Appellant contends the court erred in ordering appellant’s property restored to its prior condition and in requiring him to contribute one-half of the cost of repairs. In the cross-appeal appellees contend the court erred in ordering appellees to contribute one-half the cost of restoring the retaining wall on appellant’s property, and argue appellant should bear all the cost. As the contentions are intertwined they will be jointly discussed. The decree made the following findings: At some unknown time in the past, probably prior to 1913, the Defendant’s predecessors in title excavated their property and built a brick building wall along the boundary line with the property owned by the Plaintiffs’s predecessors in title. Subsequently, and probably in 1913, the building was destroyed and new improvements were constructed not covering the entire excavated area, thereby leaving the original building wall standing along the boundary line. At some time, also unknown, the Plaintiffs predecessors in title placed fill against the original brick wall thereby putting additional pressure on the wall. In May of 1978, the wall was struck by lightning and a portion of the wall collapsed causing the erosion of some of the Plaintiff s land. This was an Act of God and was not caused by the fault or negligence of any party. That in the interest of fairness and equity, the Court exercises its right to create an equitable remedy by requiring the wall to be restored to such a condition as to prevent further erosion of Plaintiffs property and that the cost of restoration shall be shared equally by the Plaintiffs and the Defendant. Neither of the parties contend the court erred in its findings, but both appellant and appellees contend the court erred in the application of the law. The Arkansas Supreme Court apparently has not had occasion to pass upon this type issue; however, it is a well settled common law doctrine that the owner of land has the right to the lateral support of his soil in the natural state, and the law provides recourse for violation of this right. In 1 Am. Jur. 2d, Adjoining Landowners, § 37, the following language is found: The principle that the owner of land has the right to lateral support from the adjoining soil, and the adjacent proprietor may not remove the earth to such an extent as to withdraw the natural support of his neighbor’s soil without being liable for the injury, may be regarded as a settled doctrine of the common law. Numerous cases from various jurisdictions in support of this rule are to be found in 2 C.J.S., Adjoining Landowners, § 9. Ownership of land is acquired and held subject to the rights and burdens arising from such conditions. Sime v. Jensen, 213 Minn. 476, 7 N.W. 2d 325 (1942.) The rule does not preclude a landowner from excavating upon his land, but he owes a continuing duty to protect an adjoining landowner’s property when the excavation removes lateral support. It is his duty to provide an artificial support if the conditions so require. 2 C.J.S. Adjoining Landowners, § 15. This duty extends to successive owners of the land that has been excavated. Gorton v. Schofield, 311 Mass. 352, 41 N.E. 2d 12 (1942); Braun v. Hamack, 206 Minn. 572, 289 N.W. 553 (1940); Lyons v. Walsh, 92 Conn. 18, 101 A. 488 (1917). The duty is absolute and is not predicated upon negligence. Williams v. Southern Railway Co., 396 S.W. 2d 98 (Tenn. App. 1965); and Levi v. Schwartz, 201 Md. 575, 95 A. 2d 322 (1953). In the present case it is undisputed that as a result of the collapse of the wall appellees’ lands are subsiding and shifting upon appellant’s land. Appellees each have a dwelling house upon their respective land and they; will suffer continuing damages to their property unless lateral support to the land is restored. It is apparent from the record that, while lightning struck the retaining wall on appellant’s land which provided lateral support to appellees’ land, the subsidence of appellees’ lands would not have occurred but for the excavation that had previously been made upon appellant’s land. However, the court found that additional pressure on the retaining wall was created by some fill having been placed adjacent to the wall on appellees’ lands, and from the record we conclude that this was a contributing factor in bringing about the collapse of the wall and the resulting subsidence of appellees’ lands. Under the circumstances of this case we conclude the Chancellor was warranted in balancing the equities by requiring the appellant to bear half the cost of restoring the wall and the appellees to bear half the cost. It appears restoration of the wall will be beneficial to the properties of both the appellant and appellees. This proceeding was in equity and the court had the power and duty to devise a remedy appropriate to the peculiar circumstances of the case and we conclude the court’s decree was equitable, appropriate and not contrary to a preponderance of the evidence. Am. J. 2d, Equity, § 103. Affirmed.

David Newbern, Judge. This case was appealed to the Arkansas Supreme Court and by that Court assigned to the Arkansas Court of Appeals pursuant to Arkansas Supreme Court Rule 29(3). This is a workers’ compensation case resulting from death of an employee due to a heart attack. The Workers’ Compensation Commission found that the employee was not acting in the scope of his employment at the time of the heart attack and immediately subsequent death which led to this claim. Scope of employment was the only issue before the Commission. There was conflicting evidence whether the deceased, a contract-hauler for Chandler Trailer Convoy, Inc., was hauling a mobile home for the benefit of the Company or was engaged in a haul which was contrary to his agreement with the Company and solely for his own benefit. Neither side called as a witness Mr. Carlos Irrirzary who, at the time of the move in question and for a period thereafter, was employed in a management position with the Company. His job was described in the record as “claims man” in charge of “driver personnel.” Evidence of his foreknowledge or approval of the move or evidence of the lack of such foreknowledge or approval would have been highly persuasive with respect to the scope of employment issue. Numerous references were made in the testimony of witnesses before the Administrative Law Judge to the fact that Mr. Irrirzary knew of the move, at least after it had taken place. Neither side presented him, despite the fact that the record was left with nothing to show whether he knew or did not know of the move before it was to occur or during its occurrence. Some testimony indicated that Mr. Irrirzary’s statements to other witnesses at least implied the Company expected to be paid for the move. No explanation was given by either side for failure to call Mr. Irrirzary. Each side now contends it was the responsibility of the other to call him. Mr. Chandler, president of the Company, testified that Mr. Irrirzary had, the day before the hearing, retired from his employment with the Company and was living at Benton, Arkansas. The Commission’s decision was vacated and set aside on appeal to the Circuit Court, and the case was remanded to the Commission for the purpose of taking the testimony of Carlos Irrirzary “and for the development of any further evidence to determine whether the decedent, John Henson, was working within the scope of his employment with the respondent-employer when he suffered a fatal heart attack.” The Company contends the Court’s order was improper for various reasons. Appellee contends the Court’s order was not appealable, and even if it were found to be appealable, it was not improper. We need not discuss the propriety of the order remanding the matter to the Commission for further evidence, as we find the order to be not appealable. In Nolan Lumber Co. v. Manning, 241 Ark. 422, 407 S.W. 2d 937 (1966), the Arkansas Supreme Court held squarely that such orders are not appealable. That decision has not been overruled, and indeed it has been cited by the Arkansas Supreme Court with approval in Floyd v. Ark. State Board of Pharmacy, 248 Ark. 459, 451 S.W. 2d 874 (1970). The Appellants would have us look to the language of the Nolan Case which went beyond the holding of non-appealability to discuss the propriety of remanding a case to the Commission for further evidence, and which indicated that if the trial court abused its discretion in remanding a case to an administrative agency, its decision might be reversed. We regard that language as dictum only, in view of the clear holding of the Nolan Case which is set out in the final two paragraphs of the opinion as follows: The general rule in our state is that appeals lie only when and if there is a final judgment, decree or order. (Citations.) Since the order entered by the trial court in this case is not appealable the appeal should be dismissed and it is so ordered. 241 Ark. at 424. We, therefore, affirm the trial judge’s order remanding the case to the Workers’ Compensation Commission. Neither side on this appeal cited Bridges v. Arkansas Motor Coaches, Ltd., Inc., 256 Ark. 1054, 511 S.W. 2d 651 (1974), but we feel compelled nonetheless to distinguish that case in which the Arkansas Supreme Court treated an appeal from an order by a circuit court remanding a case to the Transportation Commission for the taking of further evidence as a request for certiorari and found the circuit court lacked jurisdiction to order the remand. There the Supreme Court found the trial court’s order was a flagrant act in disregard of the procedure for filing a complaint before the Transportation Commission. We find nothing comparable here, as there is no separate procedure by which the evidence sought could be introduced in a way that would benefit this claimant. Thus, even if the Circuit Court’s action were found to have been improper, in this case it could hardly be elevated to the level of “jurisdictional impropriety. ”

John A. Fogleman, Justice. The trial judge sustained the general demurrer of George’s, Inc., to the complaint of Arnal Wayne Griffin, seeking to recover for personal injuries suffered during the course of his employment by George’s, Inc. Originally, there was no indication that this ruling was a final judgment, as Griffin was given 30 days to plead further. See Griffin v. George’s, Inc., 266 Ark. 646, 587 S.W. 2d 225 (1979). We did not dismiss the appeal, in order that the parties might have an opportunity to establish the finality of the trial court’s action. We now have a record reflecting the dismissal of Griffin’s complaint, which is, of course, a final order. Since the dismissal was based upon the sustaining of appellee’s demurrer, we must consider as true all facts well pleaded in the complaint and draw all reasonable inferences from those facts in favor of the pleader. Howell v. Arkansas Power & Light Co., 225 Ark. 535, 283 S.W. 2d 680; Tri-B Advertising, Inc. v. Arkansas State Highway Com’n., 260 Ark. 227, 539 S.W. 2d 430. So we will review the facts alleged in the complaint as if they were facts established as true. George’s, Inc., is engaged in the feed and grain indus try. Griffin was an employee of George’s at Springdale. On or about July 10, 1974, Griffin, then 17 years of age, was severely, painfully, seriously and permanently injured when, in the performance of his duties, he stepped on loose grain and other foreign objects on the surface surrounding an unguarded grain auger and slipped into and become entrapped in it. This auger constituted an extreme hazard to persons working near it, as appellant was at the time of his injury, for the following reasons: There was no grate, or any other protective guard, to prevent persons coming near the auger from falling into, or becoming trapped in, the auger; a protective grate which had been on the auger when it was installed was removed by Griffin’s employer in order to install a “clod-buster” and had never been replaced; the auger was two to three feet below ground level, and the opening into it was funnel shaped, i.e., it was larger at ground level than it was at the level of the auger; the surface at ground level sloped toward the opening of the auger, and, since there was usually grain lying upon this surface, one coming near the opening could easily slip and fall into the unguarded grain auger. This condition was permitted to exist in spite of the fact that it was in direct violation of federal and state statutes and regulations, and could have easily been corrected by installation of a protective covering over the opening. Although the employer was aware that this condition was hazardous and dangerous to its employees and recognized the substantial certainty that it would result in injury to an employee, it wilfully and wantonly disregarded this known danger and gave Griffin a dangerous work assignment which placed him in direct danger of injury by the auger. The employer ordered him to perform this duty without giving him any instructions in the proper and safe manner of performance of his duties or any warnings regarding this dangerous and hazardous condition, in spite of the fact that it was substantially certain that an employee in Griffin’s position would be injured by reason thereof. The auger contained a shaft with a blade connected thereto which was revolving on the shaft when Griffin slipped into it and his resulting injuries were compounded by delay in stopping the operation of the grain auger due to the fact that no safety “shut-off’ devices had been installed on the auger. Griffin was required to start work at 5:00 a.m. on the day he was injured, in violation of Ark. Stat. Ann. § 81-707 (Repl. 1976) [Child Labor Act]. He was also involved in the operation of power driven hoisting apparatus in direct and intentional violation of federal regulations. Plaintiff s injuries would not have occurred had this federal regulation not been violated. The demurrer and the circuit court’s order sustaining it were based upon Ark. Stat. Ann. § 81-1304 (Repl. 1976) which makes the rights and remedies of an employee under the Worker’s Compensation Law exclusive of all other rights and remedies of the employee for injury or death arising out of and in the course of his employment. Appellant contends that the trial court erred in sustaining the demurrer because his injury resulted from an intentional tort committed by George’s. He recognizes that, in Haggar v. Wortz Biscuit Co., 210 Ark. 318, 196 S.W. 2d 1, we held that recovery from the employer for the death of an employee in a wrongful death action based on allegations of gross negligence and unlawful acts of the employer was barred because remedies provided by the Worker’s Compensation Law were exclusive. This holding was subsequently construed to mean that recovery for injury or death resulting from gross negligence of the employer was limited to the remedy provided by the Worker’s Compensation Law under § 81-1304, but the section was not to apply to a wilful and malicious injury by an assault by the employer on the employee. See Heskett v. Fisher Laundry & Cleaners, Inc., 217 Ark. 350, 230 S.W. 2d 28. Griffin contends that, since his complaint alleges an intentional tort, he is not precluded from proceeding with his common law tort action against his employers. He draws an analogy between the test regarding exclusivity of remedies under the Worker’s Compensation Law and the test for allowance of punitive damages in negligence cases. He points out that punitive damages are not recoverable in cases where liability is based upon negligence, however gross the negligence may be, unless there is either an added element of intentional wrong, or its equivalent, conscious indifference in the face of discovered peril, from which malice may be inferred, citing St. Louis S.W. Ry. Co. v. Owings, 135 Ark. 56, 204 S.W. 1146; St. Louis I.M. & S. Ry. Co. v. Dysart, 89 Ark. 261, 116 S.W. 224; Moore v. Wilson, 180 Ark. 41, 20 S.W. 2d 310. Griffin argues that the outer limits of the exclusivity ban should coincide with the limit on the right to seek punitive damages in negligence cases. Appellant also points out that in Ellis v. Ferguson, 238 Ark. 776, 385 S.W. 2d 154, we held that the law imputes a constructive intention as to the consequences to an offender and, in some cases, conduct which would otherwise be mere negligence becomes a wilful wrong when there was a reckless disregard of probable consequences by the actor. He also relies upon definitions of intent which extend to consequences which the actor believes are substantially certain to follow from what he does. See Prosser, Torts (4th Ed.), p. 31, § 8; Restatement of the Law, Torts, 2d, p. 15, § 8A. He also cites Garratt v. Dailey, 46 Wash. 2d 197, 279 P. 2d 1091 (1955), wherein the Washington Supreme Court held that a defendant who moved a chair while plaintiff was in the process of sitting down in the chair, would be liable for the intentional tort of battery, if he acted with knowledge that such result was substantially certain to occur. This case dealt with common law tort liability only. We think that appellant is asking us to extend our decisions in Hagger and Heskett, to write an exception into § 81-1304 for injuries or death resulting from wilful and wanton negligence. In Heskett, we considered the question whether a wilful and malicious injury inflicted by an officer and general manager of the employer upon the employee is comprehended within the provisions of the Worker’s Compensation Act. We held that the vicious, intentional, unprovoked, and premeditated assault by the employer upon the employee was not an accident so as to come within the provisions of the Worker’s Compensation Act. It naturally followed that the “exclusive remedy” section did not apply in such a case. Actually, it had been alleged in the complaint in Hagger that the acts relied upon to avoid the application of that section were gross, wanton and unlawful. There was no departure from Hagger v. Heskett; instead, we adhered to Hagger, and did not relax the strict limitation of § 81-1304. It is also important to remember that our decision in Heskett that the employee could seek full damages in a common law action was based upon the premise that an employer wilfully severs the employer-employee relationship by committing a wilful assault upon the employee. The appropriate construction of § 81-1304 is indicated in Larson’s Workmen’s Compensation Law, Vol. 2A, p. 13-8, § 68.13, where the writer said: Even if the alleged conduct goes beyond aggravated negligence, and includes such elements as knowingly permitting a hazardous work condition to exist, knowingly ordering claimant to perform an extremely dangerous job, wilfully failing to furnish a safe place to work, or even wilfully and unlawfully violating a safety statute, this still falls short of the kind of actual intention to injury that robs the injury of accidental character. Heskett is not inconsistent with this approach. It only excepts acts committed with an actual, specific and deliberate intent on the part of the employer to injure the employee. We relied upon authority that an employer who deliberately batters his employee should not be allowed to compel the worker to accept moderate workmen’s compensation benefits. We think the proper result was reached in Finch v. Swingley, 42 A.D. 2d 1035, 348 N.Y.S. 2d 266 (1973). The effect of that decision is that, in order to avoid the bar of the exclusivity clause on demurrer, the complaint must be based upon allegations of an intentional or deliberate act by the employer with a desire to bring about the consequences of the act, and not upon allegations of wilful and wanton conduct by negligent direction to the employee to use a device known by the employer to be defective or failure to warn the employee of an unsafe condition of which the employer was aware. In considering § 81-1304, we must keep in mind that if employers are required not only to provide worker’s compensation but also to defend tort actions of employees and to respond in damages for torts, there would be a subversion of the very purpose of the whole workmen’s compensation scheme of spreading the risk of loss for injuries arising out of, and in the course of, covered employment so that, indirectly and ultimately, the general public bears the burden as a part of the cost of articles produced or services rendered, because there would be no way to spread the risk of the tort liability. See, Rosales v. Verson Allsteel Press Co., 41 Ill. App. 3d 787, 354 N.E. 2d 553 (1976). The trial court properly sustained the demurrer of George’s, Inc. to Griffin’s complaint, so the judgment is affirmed. Our definitions of wilful and wanton negligence include the element of constructive intent, upon which appellant relies. See Edwards v. Jeffers, 204 Ark. 400, 162 S.W. 2d 472; Cooper v. Calico, 214 Ark. 853, 218 S.W. 2d 723; Scott v. Shairrick, 225 Ark. 59, 279 S.W. 2d 39; Spence v. Vaught, 236 Ark. 509, 367 S.W. 2d 238; Carden v. Evans, 243 Ark. 233, 419 S.W. 2d 295.

John A. Fogleman, Justice. Appellee Metropolitan National Bank brought suit against appellants, BWH, Inc., James A. Neal and Charles A. Neal on a promissory note executed by BWH, Inc. and Charles A. Neal. The note was dated August 23,1977, for $27,000, with interest at the rate of 10% per annum. Appellee alleged that Charles A. Neal and James A. Neal had executed a guaranty of the indebtedness of BWH, Inc. on August 30, 1977. Appellants answered, admitting their status and residence, but otherwise generally denying appellee’s allegations. Appellee then filed requests for admissions addressed to James A. Neal and Charles A. Neal separately. No responses were ever filed by either. On September 27, 1978, 19 days after the filing of the requests for admissions, appellee filed a motion for summary judgment, based upon the failure of appellants to answer the requests for admissions. On the same day, appellants addressed interrogatories to appellee, which were answered October 20, 1978. Appellants filed a response to the motion for summary judgment on October 9, 1978. In the response, appellants stated that there were genuine issues of material fact to be adjudicated, that they verily believed that defenses could be raised by further pleadings, that interrogatories to appellee had been propounded prior to the filing of the motion for summary judgment but that no response had been received, that appellants had been diligent in conducting discovery, and that responsive pleadings by them prior to receipt of responses to the interrogatories would be irresponsible and spurious. On November 7, 1978, appellants filed an amended response to the motion for summary judgment. Appellants stated that their attorney had received, by regular mail, appellee’s request for admissions on September 11, 1978, a notice of trial date of March 5, 1979, on September 19, 1978, and appellee’s motion for summary judgment on September 29, 1978. Appellants asserted that the motion for summary judgment was filed prior to the time fixed by statute for answering the requests for admissions. Appellants also alleged that Steve Riggs, appellee’s attorney, had, on or about October 3,1978, indicated to the attorney for appellants that no further action would be taken on the motion for summary judgment until appellee responded to the interrogatories propounded to it, and that appellants’ attorney had informed Riggs that there were justiciable issues and valid defenses to be raised and that he was attempting to conduct discovery as provided by law. Appellants excused their failure to file controverting affidavits by saying that appellee had filed no supporting affidavits and the motion was untimely filed. (No objection to the premature filing of the motion had been made in the response filed October 9.) Appellants also alleged that, after their attorney received appellee’s response to their interrogatories on October 23 or 24, 1978, he attempted to contact Charles A. Neal, an active member of the United States Army, stationed at Ft. Sam Houston, for the purpose of discussing the responses to the interrogatories and further discovery by depositions, but was unsuccessful until Charles Neal came to Little Rock on October 30, 1978, when it was decided that further discovery was necessary. Appellants also alleged that, on November 2, 1978, their attorney received a copy of a letter to the circuit judge enclosing a precedent for summary judgment, and indicating that the judge had requested the precedent. Appellants further alleged that on November 3, 1978, appellee’s attorney was informed by telephone that appellants had not completed discovery and that they proposed to take the deposition of Weldon McWhirter, an officer of appellee, but, several minutes later, appellant’s attorney received a telephone call from the circuit court law clerk, who stated that the summary judgment would be entered, but the judge was out of town and would return on November 7,1978. They alleged that the law clerk was informed that appellants would file additional pleadings and affidavits. Appellants asserted that they had been diligent in their attempts to complete discovery and file responsive pleadings but were unable to do so without completion of discovery. Appellants also asserted that appellee was not entitled to summary judgment because the motion was untimely filed, since no time for hearing on the motion had been fixed as required by Ark. Stat. Ann. § 29-211 (c) (Supp. 1977) and because appellant was not entitled to summary judgment “as a matter of law required by Ark. Stat. Ann. §§ 29-201 and 29-211.” This amended response was supported by the affidavit of appellant James A. Neal, who is also attorney for appellants. In that affidavit, he asserted that: McWhirter, an officer of appellee, had stated on oath in response to appellants’ interrogatory that the promissory note was not a renewal of a previous note or notes but that the note exhibited with the complaint stated on its face that it was a renewal; BWH, Inc. and Charles A. Neal had received no consideration for the promissiory note; Charles A. Neal and James A. Neal received no consideration for the execution of the guaranty executed some seven days after the note was executed; and other guarantors may be liable to appellee or appellants, but entry- of summary judgment might be res judicata against said liability or contribution as allowed by Ark. Stat. Ann. § 27-1134.1 (Supp. 1977). This affidavit also contained the following allegations: that appellee’s response to an interrogatory was that, as part of the sale of BWH, Inc., the proceeds of the note which was the subject of the suit were used to pay off the outstanding indebtedness of that corporation evidenced by certain notes, but that affiant had not received any proceeds or documents reflecting that the indebtedness was paid off as part of the sale of the corporation; and that this sale was the subject of an action by Charles A. Neal and James A. Neal to recover damages from Dewey L. Buffington for alleged fraud in the sale of stock in BWH, Inc. by him to the Neals. Appellants again asserted that they had not been granted sufficient time or opportunity for full discovery. On November 17, 1978, appellants filed a motion to set aside the summary judgment, which had been entered on November 7. The following grounds were alleged: the motion was a nullity because it was untimely filed; the judgment was entered without notice of the date and time fixed for the hearing; the judgment was entered without a hearing; there was no statutory authority specifically allowing for the summary judgment, or, in the alternative, the extent of relief granted exceeded the lawful purpose and intent of summary judgment statutes and the judgment was not well founded in law or fact; the record clearly reflects that there were material issues of fact and law that appellants were attempting to raise by discovery; and the entry of summary judgment within approximately 80 days of the institution of this suit while various pleadings were filed and discovery was being conducted was a denial of appellants’ legal right to defend against the claim and unlawfully foreclosed appellants’ remedies. Appellants’ motion was denied because the trial judge found that appellants had not, even to the date of the denial, November 22, 1978, injected any factual issues to be resolved in this case. Appellants contend that summary judgment may be granted in Arkansas only in those specific situations authorized by Ark. Stat. Ann. § 29-201 (Repl. 1979), and that no summary judgment may be rendered in an action on a promissory note. They quote from an article on the summary judgment procedure written by Dr. Robert A. Leflar more than a decade before the adoption of Ark. Stat. Ann. § 29-211 (Repl. 1962). That article contained a statement that most states, like Arkansas, restrict the summary judgment procedure to a limited group of actions. Minimum Standards of Judicial Administration - Arkansas, 5 Ark. L. Rev. 1, 7. In the same comments on summary judgment procedure, Dr. Leflar also pointed out that Rule 56 of the Federal Rules of Civil Procedure made summary judgments available in federal courts in all appropriate cases regardless of the type of action involved. It is appellants’ contention, however, that by the subsequent act (Act 123 of 1961, digested as Ark. Stat. Ann. § 29-211) adopting Rule 56 of the Federal Rules of Civil Procedure, the legislature merely prescribed procedures to be used in the limited group of actions enumerated in other specific statutes, none of which mention actions on promissory notes. They rely particularly on § 2 of the Summary Judgment Act providing that “This Act is cumulative and supplementary to existing provisions governing summary judgments, and does not in any manner amend, repeal, or supersede such provisions.” The mere fact that the act did not amend, repeal or supersede existing statutory provisions does not limit the effect of the act to providing a procedure for obtaining summary judgment in cases authorized by other statutes, even if it actually does that. If the act were merely supplementary, appellants’ argument would carry more weight. The word cumulative, as used in the act, is indicative, however, of an addition to existing provisions for summary judgments. Since the act is both cumulative and supplementary to existing provisions, we find no merit in this argument. Appellants argue that, since the General Assembly passed Act 30 of 1961 adding another category to cases in which summary judgments are permissible under Ark. Stat. Ann. § 29-201 at the same session it adopted Federal Rule of Civil Procedure 56, the General Assembly intended to limit the scope of Act 123, so that it is only a procedural implementation of § 29-201. This argument is not persuasive. Appellants contend that the record and proceedings establish the presence of issues of fact. In this case,, appellants’ failure to answer the requests for admissions, in effect, admitted the allegations of the complaint. The time allowed for answer to the request for admissions under Ark. Stat. Ann. § 28-358 (Supp. 1977) was 20 days after the services of the requests. Appellants take the position that there was no service of the request until September 11. Appellants, however, never filed any response to the requests. They satisfied themselves by filing, on October 9, a response to appellee’s motion for summary judgment which had been filed on September 29. A response to requests for admissions must be a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why the party to whom the request is directed cannot truthfully admit or deny those matters or written objections on the ground that some or all of the requested admissions are privileged or irrelevant or that the request is otherwise improper in whole or in part. Sec. 28-358 (a) (Supp. 1977). Appellants’ response to the motion for summary judgment did not begin to conform to these statutory requirements. Those requests must be taken as admitted, because no attempt was made to answer them, either in the allotted time or after its expiration. Ark. Stat. Ann. § 28-358 (a); Federal Factors, Inc. v. Wellbank, 241 Ark. 44, 406 S.W. 2d 712; Stocker v. Southwestern Co., 245 Ark. 350, 432 S.W. 2d 481. These admissions establish the execution of the instruments upon which the suit was brought and that the indebtedness evidenced by the note remains unpaid. The signatures on the commercial instrument on which suit was brought were not specifically denied in the pleadings, so they stood as admitted in any event. Ark. Stat. Ann. § 85-3-307 (1) (Addendum 1961). The signatures being admitted, appellees would have been entitled to a judgment upon production of the instrument, unless the defendant established a defense. Ark. Stat. Ann. § 85-3-307. Appellants have never sought to establish a defense, except for their belated attempt in their amended response to the motion for summary judgment to assert want of consideration. Want of consideration is an affirmative defense to an instrument. Ark. Stat. Ann. § 85-3-408 (Addendum 1961). It was never pleaded, even though appellants filed an answer. Affirmative defenses must:be pleaded by answer. Ark. Stat. Ann. § 27-1121 (Repl. 1962). Stolz v. Franklin, 258 Ark. 999, 531 S.W. 2d 1. Appellants could not raise an issue not raised by the answer by simply amending their response to the motion for summary judgment. Although the burden of demonstrating the non-existence of a genuine issue of fact is on the moving party, a plaintiff moving for summary judgment after answer has been filed is not required to negate defenses not raised by the answer. See Ashley v. Eisele, 247 Ark. 281, 445 S.W. 2d 76. Appellants do not point out any significant fact issue in their brief here. They state that the promissory note, in the handwriting of an officer of the bank, reflects on its face that the note was a renewal, but in answering one of appellants’ interrogatories, an officer of the bank had answered that the note was not a renewal of a previous note. Appellants have failed to demonstrate the significance of this apparent conflict. We are not persuaded that appellants have demonstrated that there is any material fact issue. At best, appellants ask us to speculate that further discovery would develop a material fact issue, without indicating what they expect to discover. A mere suspicion in the mind of the party against whom summary judgment is sought will not create a genuine issue of fact, nor does it suffice as good cause for further discovery. Marrow v. State Farm Ins. Co., 264 Ark. 227, 570 S.W. 2d 607. The record before us does not remove the further discover sought by appellants from the category of an outright and unadulterated fishing expedition — something we have never sanctioned under Ark. Stat. Ann. § 28-356 (Repl. 1962). Marrow v. State Farm Ins. Co., supra. Appellants also contend that the summary judgment should be set aside because they were not given notice of the date and time fixed for hearing on the motion as required by Ark. Stat. Ann. §§ 29-202 — 29-204 (Repl. 1979) and § 29- 211. The first two sections apply only to proceedings under § 29-201. Failure to hold a hearing under Ark. Stat. Ann. § 29-211 is not always fatal to a summary judgment when a party against whom the judgment is entered is not prejudiced. Sherman v. Keene, 256 Ark. 850, 510 S.W. 2d 870; Purser v. Corpus Christi State National Bank, 258 Ark. 54, 522 S.W. 2d 187. Although we do not approve of the disposition of a motion for summary judgment without notice and hearing, we will not reverse a summary judgment when it is manifest that the error is not prejudicial. Purser v. Corpus Christi State National Bank, supra. Appellants contend that they were prejudiced because appellee’s requests for admissions were taken as admitted when appellants’ time for answering had not expired under Ark. Stat. Ann. § 28-358 (Supp. 1977). The time allowed for answer under that statute was 20 days after service of the request. Appellants did not seek or obtain an extension of time for answering the requests. They do contend that they were assured by appellee’s attorney, on October 3, 1978, that the motion for summary judgment would not be pursued until appellee had answered appellants’ interrogatories. Appellants’ attorney received these answers on October 23 or 24. The proposed summary judgment was received by appellants on November 2. Appellants filed nothing until November 7, at which time they filed their amended response, a few hours after the judgment had been entered. Since appellants never attempted to answer the requests for admissions, at least prior to November 7, they are in no position to say that they were prejudiced by the filing of a motion for summary judgment one day prior to the expiration of the time for answering the requests, even if appellants’ calculation of the time is accepted. Until the filing of the amended response after appellants’ attorney had been advised that summary judgment was about to be entered, appellants had never requested a hearing on the motion for summary judgment. Rule 2e of the Uniform Rules for Circuit and Chancery Courts provides that, unless a hearing on a motion is requested by counsel or is ordered by the court, a hearing will be deemed waived and the court may act upon the matter without further notice five days after the time for the movant’s reply to a response has expired. Under that rule, the court could act, and action on either November 2 or November 7 was not necessarily premature. The reason appellants did not file a request for a hearing between October 24 and November 7 has not been shown. We have no idea what affidavits appellants could possibly have filed in opposition to appellants’ motion or the admissions máde. Appellants were not excused from filing opposing affidavits to show a material issue of fact, as they seem to think, by appellee’s failure to file supporting affidavits when appellee could show entitlement to judgment on the basis of admitted facts and the absence of any issue on any affirmative defense. It is quite difficult to see why appellants could not assert want of consideration for the instruments upon which the suit was based without discovery procedures. A party opposing a motion for summary judgment must be diligent in countering the motion and mere general allegations which do not reveal detailed and precise facts will not prevent the award of summary judgment. Ashley v. Eisele, 247 Ark. 281, 445 S.W. 2d 76. We conclude that there manifestly was no prejudice to appellants in not having a hearing on the motion for summary judgment or in the lack of notice. Appellants also contend that the trial court erred in denying its motion to set aside the judgment. What we have said heretofore is dispositive of the issues raised by that motion. Appellants filed a brief in the trial court in support of that motion. Statements in that brief which are not supported by pleadings or affidavits filed in the case cannot be considered by us on appeal. See Ashley v. Eisele, supra. The judgment is affirmed. We agree. George Rose Smith, Hickman and Purtle, JJ. This statement by appellants is not supported by their abstract of the note which simply states, “Printed promissory note with handwritten entries.” After appellee pointed out, in its brief, that appellants had failed to abstract the note and guaranty agreement, appellants attempted to supply the deficiency in their reply brief. This was too late to be considered. Energy Oil Co. v. Rose Oil Co., 250 Ark. 484, 465 S.W. 2d 690; Merritt v. Merritt, 263 Ark. 432, 565 S.W. 2d 603; Young v. Farmers Bank & Trust Co., 248 Ark. 613, 453 S.W. 2d 47. Appellee has endeavored to introduce a copy of a letter addressed to the circuit judge, with copy to appellants’ attorney, and dated October 26, 1978, in which, he asked a ruling on the summary judgment or, alternatively, to set a hearing on the motion. Appellants’ attorney denies that he received such a letter. We do not consider this letter, because we cannot find it in the transcript of the record and the method used to bring in this matter outside the record is highly improper.

Carleton Harris, Chief Justice. On November 22, 1964, appellant, Trinity Universal Insurance Company, had in force a family automobile liability policy issued to Marguerite (I. McCoy, in which the company agreed to pay oil behalf of the insured all sums which Miss McCoy should become legally obligated to pay as damages because of bodily injury arising out of the use of any automobile by the insured. The policy limits were $10,-000.00 for any person, and $20,000.00 for any occurrence. As to coverage of Miss McCoy with respect to a non-own ed automobile, the policy provided that the Trinity coverage should apply only as excess insurance over any other insurance available to the insured. On November 22, 1964, there was a collision between an automobile driven by Miss McCoy, the car being owned by Ralph Overstreet, and another vehicle operated b3r one Gloria Jean King, the King vehicle having three passengers,Gale Montgomery, Paul Waldron, and Cheryl Brandt. It was the view of appellant that a proximate cause of the collision was the negligence of its insured in driving on the wrong side of the road, and failing to keep a proper lookout. ■ The passengers in the King automobile received numerous injuries, and appellant company, after notifying State Farm Mutual Automobile Insurance Company (hereafter called “State Farm”) and Maryland Casualty Company (hereafter called “Maryland”) of the accident, and demanding that those companies admit coverage for the injuries sustained, settled the claims against Miss McCoy, when the appellee companies denied liability. The amount of ■ settlement was $9,729.34. Thereafter, Trinity instituted suit against appellees in the Pulaski County Chancery Court, seeking judgment for that amount, together with interest, costs expended, and other proper relief. The two appellees filed separate demurrers, and also a motion to transfer the case to law, and, after, amendments to appellant’s complaint, and to the demurrers filed by appellees, the court found -that the demurrers should be sustained; appellant’s complaint, as amended, was dismissed. From the decree so entered, Trinity brings this appeal. The sole question before us is whether the court erred in sustaining the demurrers. In its complaint, appellant alleges the facts upon which it bases the claim against appellees. In addition io setting out its own coverage to bliss McCoy, appellant asserted that appellee, State Farm, at the time of the .accident, had in force a family automobile liability policy issued to Chris Floyd, under which, infer alia, the company had agreed to pay all sums which its insured might become obligated to pay as damages because of bodily injuries sustained by any person arising out of the use of any non-owned automobile by any relative of the insured using said automobile with the permission of the owner, or arising out of the use of a non-owned automobile by any other person with respect to liability, because of acts or omissions of a relative of the insured. It was further asserted that Maryland had in force a family automobile liability policy issued to Ralph Over-street in which, infer alia, Maryland agreed to pay all sums which Overstreet should become legally obligated to pay as damages because of bodily injuries sustained by any person arising out of the ownership, maintenance or use of an automobile owned by Overstreet, or by any person operating the ear with the permission of this insured. The alleged facts which legally obligated the two appellee companies are as follows: bliss McCoy was operating the vehicle owned by Overstreet (insured by Maryland), and in which Lee Floyd, son of Chris Floyd (insured by State Farm) was riding, Miss McCoy and Floyd being engaged in a joint venture for their mutual benefit, one of the objects being for Floyd to teach Miss McCoy how to drive the Over-street vehicle. It was asserted that Floyd liad the. right to direct the manner of operation and course of the automobile. Tt is contended that this use of the Overstreet automobile by Marguerite McCoy and Lee Floyd was with the permission of Ralph Overstreet through the latter’s son, Don Overstreet. It is further asserted in the complaint that appellant notified appellee companies and made a demand that they admit coverage for the injuries sustained by the King passengers, and that appellees settle or defend the claims which those persons were making against Miss McCoy and the estate of Lee Floyd. As previously mentioned, both appellees denied coverage, and Trinity alleged that it then proceeded in good faith and “in the exercise of its best judgment” to settle these claims for the amount previously mentioned, Trinity obtaining releases for any claim which those persons might have against all three of the insurance companies, and their insureds. It is alleged that the settlements were most reasonable because of the liability of McCoy and Floyd, and the amount of damages sustained by claimants. Both companies filed demurrers. The demurrer of State Farm (after being amended) set out four grounds, viz., (1) that appellant had not commenced its action within three years from the date of the collision, and was therefore barred by the statute of limitations, (2) that appellant was acting as a mere volunteer, being under no obligation to make any payment, (3) that, under the provisions of Ark. Stat. Ann. § 66-4001 (Repl. 1966) appellant could not property bring a direct action against State Farm, and (4) that appellant has not exhausted its remedies against the estate of State Farm’s alleged insured, Lee Floyd. Maryland also relies upon the first three to sustain its position. Motions were also filed by each appellee to transfer the case to the Circuit Court. "We find no merit in any of the grounds asserted in the demurrers. The action instituted by Trinity is based upon subrogation, but the relief sought is actually that of contribution, appellant contending at the least, that it paid more than its share of a common liability. As to the first ground, the statute of limitations had not run for the reason that Trinity had no cause of action against anyone until it made its first settlement payment on May 11, 1965. In Pennington v. Karcher, 171 Ark. 828, 286 S.W. 969, this court said: ‘ ‘ It was also expressly held in that case that the right of action for contribution accrues when one surety pays more than his share of the common liability. This is in accordance with the general rule, that a party acquires the right of contribution as soon as he pays more than his share, but not until then, and consequently the statute of limitations does not begin to run until then.” See also Hazel v. Sharum, 182 Ark. 557, 32 S.W. 2d 315. Nor can we agree that appellant was a mere volunteer in settling the claims with the obcupants of the King automobile. A volunteer is one, who, without interest to protect, or without a legal or moral obligation to pay, satisfies the debt of another. It is not necessary that we discuss whether the taking of the subrogation agreement removed appellant from this category, for it is very obvious, under the pleadings, that Trinity had an interest to protect. Appellees argue that, as a prerequisite to enforcing contribution among insurers, it is essential that the same risks have been insured, and it is pointed out that Trinity, in its complaint, asserted that it only had excess coverage over that of Maryland and State Farm, rather than a primary obligation to third parties. Appellees overlook the fact that appellant’s averment in its complaint provided “with respect to a non-owned automobile that the coverage shall apply only as excess insurance over any other insurance available to the insured.” The question of whether Miss McCoy was covered under policies issued by State Farm and Maryland is very much in controversy, and, should it develop that their policies do not afford coverage, appellant will have primary liability, Miss McCoy being appellant’s insured. It is thus apparent that Trinity had a very real interest in settling these claims. After all, if appellant held a bona fide view that appellee companies held the primary coverage, but knew that those companies would contest liability, what other steps could have been taken by appellant to protect its interest? According to the allegations in the complaint, it notified State Farm and Maryland, and sought their cooperation. They refused to have any part in any negotiations with claimants. Trinity asserted that, under the circumstances of the collision, it made a “very reasonable” settlement. Bear in mind that, in testing the sufficiency of a demurrer, well pleaded allegations of the complaint are taken to be true. Howell v. Ark. Power and Light Co., 225 Ark. 535, 283 S.W. 2d 680. As to Points 3 and 4, we agree that, if Trinity were endeavoring to stand in the position of Marguerite McCoy for the purpose of enforcing a right of contribution against Lee Floyd (estate) the argument by appellees would be correct, for this would be a direct action against (according to the allegations of the complaint) one of State Farm’s insured, and would he a violation of Ark. Slat. Ann. § 66-4001 (Repl. 1966). But Trinity is not socking to enforce any right of contribution which its named insured, Marguerite McCoy, might have had against Lee Floyd as a joint tortfeasor; rather, it is seeking to enforce the alleged right which Marguerite McCoy had as an insured of State Farm and Maryland. To simplify the matte:', let us suppose that Miss McCoy had no insurance with Trinity, and was not carrying insurance of her own at the time of the collision. Following the accident, she advises State Farm that she believes she has coverage under the policy issued to Chris Floyd, because she and the son wore engaged in a joint venture, and he was instructing her how to drive at the time of the accident; she further informs Maryland that she believes she has coverage under the policy issued to Ralph Overstreet, because she was driving Overstreet’s automobile with the permission of his son, Don Overstreet. Both Btate. Farm and Maryland deny coverage, and inform Miss McCoy that they will not defend the litigation. Bhe has an opportunity to settle with claimants for a reasonable sum, and feels that she cannot afford to hold such an opportunity in abeyance until after testing- her rights against State Farm and Maryland. Accordingly, she settles with claimants from her own funds. Would any one then dispute her right to bring suit against the two insurance companies in a direct action as a matter of establishing her contention? That is exactly the situation before us in this litigation, except that Trinity, in making settlement for Miss McCoy, was subrogated to her rights against appellee companies. Appellees expend considerable time in their briefs with the contention that this action should have been brought in the Circuit Court. As previously mentioned, a motion to transfer the cause to that court was filed by both appellee companies. However, the question of whether the case should have been transferred to law is not before us in this litigation. The court made no ruling whatsoever on this motion; the only ruling made was that the demurrers should be sustained. If appellees thought that the case should be transferred to Circuit Court, tlie}T should have insisted that the court pass upon the motions. In Higginbotham v. Harper, 206 Ark. 210, 174 S.W. 2d 668, this court said: “But assuming that appellee had a complete and adequate remedy at law and should have proceeded there, his failure to do so was not ground for dismissing the complaint as prayed in the demurrer. Section 1243, Pope’s Digest. There was no motion to transfer to law, and the error, if error as to forum, was waived. ” See also The Church of God in Christ v. The Bank of Malvern, 212 Ark. 971, 208 S.W. 2d 770. Here, a motion was made to transfer to law, but was never acted upon; instead, the court sustained the demurrers and dismissed the complaint, which was error. For the reasons heretofore set out, the decree is reversed, and the cause is remanded to the Pulaski County Chancery Court (Second Division) for further proceedings not inconsistent with this opinion. Lee Floyd died two days later as a result of injuries received in this accident. In Mosher v. Conway, 46 P. (2d) 110, the Arizona Supreme Court said: “* * * It is true, of course, that a mere volunteer, who has no rights to protect, may not claim the right of subrogation, for one who, having no interest to protect, without any legal or moral obligation to pay, and without an agreement for subrogation or an assignment of the debt pays the debt of another, is not entitled to subrogation, the payment in his case absolutely extinguishing the debt. But when one, to protect his own interest, pays a debt which he honestly believes must be paid to accomplish that purpose, we think, by the fundamental principles of equity, he cannot be held to be a mere volunteer, even though it may after-wards appear the payment was unnecessary.” Emphasis supplied. This statute provides that a judgment must first be rendered against the insured, and remain unsatisfied for a period of 30 days before suit can be instituted against the insurer. Ark. Stat. Ann. 5 27-208 (Repl. 1962) is identical to this section

Emon A. Mahony, Special Justice. This litigation originated in the Chancery Court of Jefferson County, Arkansas. The appellee was the plaintiff in the lower court. The complaint alleges that Guaranty Financial Corporation, the plaintiff, was the owner of all of the outstanding capital stock of Universal Insurance Company. That on or about October 1, 1967, it entered into a written contract with the defendant, Nineteen Corporation, a corporation organized and existing under and by virtue of the laws of Texas, whereby the plaintiff agreed to sell and the defendant agreed to purchase all of the outstanding common stock of the Universal Insurance Corporation pursuant to a written contract, a copy of which was attached to the complaint. The contract recites a cash consideration of $141,000 and a further consideration of the transfer of $175,000 in principal amount of first real estate mortgage loans qualifying as investments under the insurance laws of the State of Arkansas. The total consideration was therefore $316,000. The execution of this contract is admitted by the defendant, Nineteen Corporation. The first sentence of paragraph 3 of the complaint reads as follows: “Subsequent to the execution of the contract for the sale of stock between the parties made Exhibit ‘A’ to this complaint, H. M. Weisenbaker, president of the defendant, requested the plaintiff to conclude the sale of the stock of Universal Insurance Company (which will hereafter he referred to for simplicity as ‘Universal’) by the exchange of a promissory note of Nineteen Corporation to be secured by a collateral pledge of the stock being purchased from Universal Insurance Company and a first mortgage lien upon certain real estate in Oklahoma City in lieu of the amount to have been paid in cash under the said contract for sale of stock.” This sentence was also admitted to he true by defendant. The next sentence of paragraph 3 of the complaint, that is, the second sentence, alleges as follows: “In addition he requested that the amount of the qualifying first real estate mortgage loans to he transferred by the defendant to the plaintiff under the contract for sale of stock be reduced from $175,000 as therein provided to $147,557.24, which was the principal balance of first real estate mortgage loans held by Universal on October 23, 1967.” The defendant denied the allegations of said second sentence of said paragraph 3 but admitted as alleged by the complaint that on October 23 it made, executed and delivered to the plaintiff its collateral promissory note and pledge agreement in the sum of $145,772.27 as described in the third sentence of said third paragraph. This new note was secured by a pledge agreement in which the 150,000 shares of common stock of the insurance company were pledged and there was also mortgaged an interest in certain real property in Oklahoma. The original written contract of sale which provided for a consideration of $141,000 in cash and $175,000 in mortgage loans further provided that the $175,000 worth of mortgage loans paid as a portion of the consideration would be transferred by Guaranty Financial Corporation to the insurance company in exchange for first mortgage loans then on hand in the insurance company. No cash consideration was ever paid. A note in the sum of $145,772.27 was delivered on October 23rd to plaintiff, Guaranty Financial Corporation. On the same date, pursuant to the contract of sale, the then existing officers and directors of the insurance company resigned and the new stockholder, Nineteen Corporation, elected new officers and directors. The new officers and directors then transferred to Guaranty Financial Corporation the notes and mortgages held by the insurance company which had a principal amount of $147,557.24. Nineteen Corporation, however, never transferred any mortgage notes to Guaranty Financial Corporation which might be exchanged for the mortgage notes of the insurance company as contemplated by the contract of sale. The complainant then sued and asked judgment for the amount of the note with interest and for the principal value of the mortgages, making a total amount of $293,329.51 plus interest and attorneys fees. It requests foreclosure of the pledge on the common stock.of the corporation. The defendant’s original answer alleged a mutual rescission of the sale and note on or about October 26, 1967. It appears that on or about said date the officers of the insurance company, who had been elected by the defendant Nineteen Corporation, resigned. Guaranty Financial Corporation then nominated and elected new directors and officers of the insurance company and the mortgage notes which had been transferred from the insurance company to Guaranty Financial Corporation were retransferred by Guaranty Financial Corporation to the insurance company. Defendant Nineteen Corporation then filed its amended and substituted answer and counterclaim and in this answer made the admissions and denials above referred to. The defendant also pleaded that the note and mortgage described in paragraph 3 of the complaint were usurious and void and pled usury as a full and complete defense. Defendant prayed that the complaint be dismissed, that plaintiff be ordered to surrender to defendant the stock of the insurance company, that the collateral promissory note, pledge agreement and real estate mortgage be can-celled and annulled, and all other proper relief. At the time of the trial only one witness testified for the plaintiff. This witness was Mr. McCarty, who was the president of Guaranty Financial Corporation. The original contract of sale was introduced. The testimony then was that there were various negotiations for the amendment of the contract whereby in lieu of the $141,000 cash payment the note, pledge agreement and real estate mortgage were executed. In response to the question of usury, the plaintiff offered a balance sheet which reflected that the net worth of the company on October 23, 1967, was $272,-392.64. The witness testified that the value of the charter was $22,000, or at least that was the value which the defendant agreed to pay. These 2 figures he testtified added together, less the amount of the mortgage notes on hand on October 23, 1967, were equal to the amount of the note which was executed by defendant, Nineteen Corporation. He further testified that between October 1 and October 23 three of the mortgages owned by the insurance company had been sold and there had been various payments on the mortgage indebtedness. Defendant objected to this testimony under the parol evidence rule and on the grounds further that it was at variance with the terms of the complaint. Plaintiff then rested. The defendant offered only one witness, Joe B. Bernard. Mr. Bernard’s testimony was to the effect that he lived at Amarillo, Texas, and he had executed a subordination agreement which subordinated the lien of his second mortgage on the lands lying in Oklahoma to a new mortgage which might be executed by Nineteen Corporation to the insurance company, Universal Insurance Company. Defendant offered no other testimony. The complaint in the case was filed on December 20, 1967. The Chancellor issued his opinion on April 29, 1968. The Chancellor issued findings of fact in which lie found that there was a new agreement, that instead of a cash payment as provided for in the written contract the defendant was to execute its promissory note to be secured by a collateral pledge of the Universal stock and a first mortgage lien upon certain real property in Oklahoma City, Oklahoma. The new agreement provided further that the defendant was to transfer to the plaintiff its own first real estate mortgage loan with a principal balance of $147,557.24. He further found that even though Mr. McCarty’s testimony is not uncontradicted as a matter of law, nevertheless, no witness took the stand to contradict Mr. McCarty’s testi mony and held against the defendant on its contention of usury. The Court held that the plaintiff is entitled to a judgment in the sum of $293,329.51 with interest plus a $10,000 attorney’s fee and that the property should l)e offered for sale at a public sale to the highest bidder for cash. A decree was entered pursuant to this opinion and in due course this appeal ensued. We hold that the findings of the Chancellor were not against the weight of the evidence on the question of usury. The defendaut-appellant has not carried the burden of proving usury which is upon the party ■who asserts it. Carter v. Zachary, 243 Ark. 104, 418 S.W. 2d 787; Wallace v. Hamilton, 238 Ark. 406, 382 S.W. 2d 363. The complaint alleged that a new agreement was Mitered into. This was admitted in the answer. The Court found that a new agreement was entered into. Obviously the new agreement could be supported by a new consideration. We think that evidence was admissible to show that there had been a change in the assets of the company whose stock was being transferred. We further think that evidence is admissible to show' the relationship between this new consideration and this change in assets. Certainly there is no contention that there wras usury in the original agreement, that is, the written agreement, and we hold that usury in the new' agreement was not established by defendant-appellant, who had the burden of proof. In reaching this conclusion w'e have taken due note of appellant’s contention that the first sentence in paragraph 3 of the complaint, which is quoted above, establishes that the new' agreement wras usurious. We do not agree wdth this contention. However, if appellant’s interpretation of the conclusion that should be reached with respect to this sentence is correct, then certainly the burden would be on the creditor to show that the contract was not usurious and oral testimony is admissible for this purpose. Andrews v. Martin, 245 Ark. 1010, 436 S.W. 2d 285; Peoples Loan and Investment Co. v. Booth, 245 Ark. 144, 431 S.W. 2d 472; Universal C.I.T. Credit Cor poration v. Lackey, 228 Ark. 101, 305 S.W. 2d 858. Appellant also attacks the provisions of the decree as to the application of the proceeds. However, the pledge agreement authorized the application of the proceeds on any of the liabilities secured by the pledge agreement and the pledge agreement secures the original note and all other liabilities, direct or indirect, absolute or contingent, due or to become due to the appellee. We do not find the directions of the decree with reference to the application of the proceeds are inequitable, that is, that the proceeds of the aforesaid sale of the common stock shall be applied first against the portion of the judgment obtained by the plaintiff by virtue of defendant’s failure to cause the plaintiff to receive real estate mortgage loans in the principal sum of $147,-557.24, together with the interest accruing thereon. Appellant next states that the decree is in error for the reason that it ordered a sale of the property for cash contrary to Ark. Stat. Ann. 51-1109 which reads, “ Sales of personal property made by order of the court shall be on a credit of three months; * * * ’ ’ We agree with appellee that this litigation involved a foreclosure of a pledge by court action and that pledges are governed by the Uniform Commercial Code. If the sale had not been made by order of the court the collateral might have been disposed of in any way that was commercially reasonable but, since the foreclosure was by judicial action, then the requirements of Ark. Stat. Ann. 51-1109 govern and by the direct terms of the statute, sales by order of the court must be on a credit of three months. Turner v. Ironside, 208 Ark. 17, 184 S.W. 2d 810; De Yampert v. Manley, 127 Ark. 153, 191 S.W. 905. We also agree with the appellant that the decree is in error insofar as it attempts to fix a lien on lands lying in Oklahoma. For the reasons stated the decree is reversed and 'remanded with instructions to enter a decree in accordance herewith. Fogleman, J., disqualified.

John I. Purtle, Justice. This is an appeal from the denial of a Petition for Writ of Habeas Corpus in the Pulaski County Chancery Court. Appellant was admitted to the state hospital as a voluntary patient by her guardian and subsequently sought release through a petition for habeas corpus. The chancery court refused to grant the petition because the guardian was not a party to the proceeding. The question to be determined is whether a guardian may voluntarily confine her ward as a patient in the state hospital against the wishes of the ward and without the ward’s consent or a probate court hearing. We do not believe a voluntary admission may be converted to an involuntary commitment without due process of law. Therefore, the writ should have been granted. On May 10, 1979, Ute Patterson, the daughter of Anne Kay Von Luce, petitioned the Washington Probate Court for appointment of herself as guardian of her mother. On the same date an order appointing the daughter as temporary guardian was issued by the court. The order simply stated that petitioner was an “incompetent.” There was an unverified letter from a doctor to the effect that in his opinion Mrs. Von Luce was an “incompetent.” The court issued a summons on the same day but it was not served on Mrs. Von Luce until 5 days later. The summons contained the usual 20-day return provisions. However, 4 days after the order appointing the guardian she voluntarily admitted her mother into the state hospital in Little Rock. On June 6, 1979, the ward filed a petition in the Pulaski County Chancery Court seeking a writ of habeas corpus. A hearing was held on the petition the following day and the court, although finding the ward illegally detained, refused to grant the petition because the guardian was not a party to the action. At this hearing the only authorization for holding the incompetent as a patient was an application for voluntary commitment which had been executed by the guardian on behalf of the ward. On the face of this application were the following words: NOTE: Arkansas statutes provide that a person may not be held on a voluntary statement against his/her will unless considered homicidal, suicidal, or gravely disabled as defined by law. There was no order of commitment or any evidence or testimony indicating the petitioner had received notification or been granted a hearing. The order from the Washington Probate Court appointing the guardian was introduced into evidence along with the unverified statement of the doctor which had been presented to the Washington Probate Court. The state hospital did not offer any testimony or other evidence indicating a need for confinement. On June 20,1979, this Court granted petitioner’s release from the state hospital on application for temporary relief. The ward was released to her guardian and subsequently returned to her home in Washington County. So far as we know, the temporary order of guardianship has expired. Ordinarily, we would consider this question moot; however, due to the likelihood of such incidents being repeated and the unlikelihood that a decision can be reached on appeal before a temporary guardianship is terminated, we treat the question as one to be considered on the merits as they existed at the time the petition for habeas corpus was heard. Even if a guardian may voluntarily admit a ward without a hearing or order, when the ward expresses a desire to leave the hospital it is a different situation. If the guardian were permitted to refuse the ward’s wishes, then the voluntary admission would become an involuntary one as it relates to the ward. To allow such confinement would contravene the statutory and constitutional safeguards afforded to the mentally ill. The writ of habeas corpus is the primary means by which a detainee may test the legal authority of his custodian. Appellee frankly admits the Pulaski County Chancery Court is the proper forum for such proceedings. Also, it is tacitly admitted the probate order appointing the guardian was of doubtful validity. Since the order has expired, we will not examine that proceeding. The fact that the custodian held authority to release petitioner was of little comfort in view of the fact that she was held until this Court ordered her release on June 20, 1979. 1979 Ark. Acts No. 817 provide that nothing in the act shall in any way restrict the rights of any person to attempt to secure their release by habeas corpus as provided by the current Arkansas law. The habeas corpus petition has been used to obtain the release of a confinee in the state hospital. Rowland v. Rogers, 199 Ark. 1041, 137 S.W. 2d 246 (1940). Ark. Stat. Ann. § 34-1733 (Repl. 1962) states: If it appear that the prisoner is in custody by virtue of process from any court legally constituted, or issued by any officer in the exercise of judicial proceedings before him, such prisoner can only be discharged in one (1) of the following cases: First. Where the jurisdiction of such court or officer has been exceeded, either as to matter, place, sum or person. Second. Where, though the original imprisonment was lawful, yet, by some act, omission or event which has taken place afterward, the party has become entitled to his discharge. Third. Where the process is defective in some matter or substance required by law, rendering such process void. * * * The state hospital held no order of any kind which authorized it to detain the petitioner. The only authorization at all was the application completed by the guardian. By no stretch of the imagination can it be said that this application was authority to hold the petitioner against her will. The Arkansas General Assembly treated this subject extensively in Act 817 of 1979. None of the provisions of this Act were followed. Section 3 (A)(B) of Act 817 states: * * (A) Any person who believes himself to be suffering from a mental illness, disease or disorder may make application in writing himself or by his guardian . . . (B) If at any time the patient who has voluntarily admitted himself or herself to the hospital makes a request to leave, and the Commissioner or his designee or the official in charge of the hospital or his designee determines that the patient is at that time homicidal, suicidal or gravely disabled, then the patient shall be considered to be held involuntarily and the commitment procedures set forth herein shall apply. * * * In an involuntary case a hearing must be held within 7 days. The only hearing was on the petitioner’s request for habeas corpus. Mental illness alone is not justification for a guardian or a state to lock a person up. There must be a meaningful hearing in accordance with due process before such action is authorized. Wessel v. Pryor, 461 F. Supp. 1144 (Ed. Ark. 1978); O’Connor v. Donaldson, 422 U.S. 563 (1975). It was stated on the face of the application for voluntary admission that a patient could not be held against his wishes unless the patient was considered homicidal, suicidal, or gravely disabled. In this case there has simply been no attempt on the part of anyone to comply with the provisions of any Arkansas law as it relates to involuntary commitment. Not even a mentally ill person may be confined against his will unless he is afforded due process of law. Act 817 provides that before a person may be committed for 30 days or more there must be a hearing at which clear and convincing evidence is presented to the effect that the ward or detainee is homicidal, suicidal, or gravely disabled. We are not unaware of the problem of society and the mentally ill. The welfare of the people and the mental patient must both be given careful attention. The best interest of both must be weighed and taken into consideration when the question of confinement is at issue. If we were not to require at least substantial compliance with the law to fully protect the rights of incompetents it would be possible for an unscrupulous person to have himself appointed as guardian and then lock his ward in a mental institution and proceed to waste the ward’s estate. If a state and the judiciary are not vigilant in the protection of the rights of incompetents it is likely to lead to the abuse of the person and estate of such incompetents. The mentally ill are unable to think and care for themselves in a normal manner and of necessity depend upon the state and the courts for protection. Although due process safeguards do not extend to the voluntary committee they most definitely extend to involuntary detainees. When a voluntary patient seeks relief he must be released or henceforth treated as an involuntary detainee in which case the due process safeguards most definitely apply. We have no choice on the record before us other than to treat petitioner as an involuntary detainee and must hold in this case that the ward was not afforded either procedural or substantive due process. Therefore, the court should have granted the petition for habeas corpus. Reversed and remanded. Harris, C.J. not participating. Hickman, J. concurs.

Lyle Brown, Justice. This action in eminent domain was brought by the Highway Commission to acquire lands needed for the relocation of Highway 9, necessitated by the construction of a new bridge across the Arkansas River near Morrilton. The jury awarded Emma Stallings Leavell $28,000. The Commission asserts error in that the trial court denied its motion for a change of venue and alleges alternatively that there is no substantial evidence to support the verdict. The landowner had a tract consisting of 151 acres. The land is situated near the bank of the Arkansas River, slightly under two miles south of the heart of the City of Morrilton. Highway 9 runs south from Morrilton and between the west boundary of part of the lands and the river, then turns southwesterly across the river bridge. The northerly 36 acres are in the hills and inside the city limits. Mr. and Mrs. Leavell have their home on the hill land. The southerly 115 acres are in the bottoms. At the time of the taking the entire tract was used for the residence and for agricultural purposes. The taking involves only the 36 acres in the hills. It is not contended that, the bottom land was damaged. The new location of Highway 9 may be described as entering the 36-acre tract near the southwest corner. It then goes into a curve, touching the east boundary of the lands and there turns northwesterly and leaves the Leavell property at a point near the center of the north boundary line. The curvature of the highway leaves the tract divided into three parcels of irregular shapes and sizes. Basing their figures on residential development, three appraisers for the landowner fixed damages at $30,160, $24,200, and $26,100. Mr. Leavell approximated the damages at between $35,000 and $40,000. The two appraisers for the Commission based compensation on agrieu.ltu.ral use and fixed damages at $9,000 and $8,750. In support of its motion for a change of venue the ('ommission introduced evidence reflecting judgments in nineteen condemnation cases tried in that county between June 18, 1967, and August 5, 1968. In all those cases the landowners received awards substantially exceeding the value testimony of expert witnesses called by the Commission. The value testimony in all of those cases was introduced in the case at bar by a lawyer witness who had inspected the records. That witness did not express any opinion as to whether the Highway Commission could obtain a fair trial in Coirwa}'' County. Just as in the case of Arkansas State Highway Commission v. Duff, 246 Ark. 922, 440 S.W. 2d 563 tile Commission tendered no affidavits in support of its motion. Our holding in Duff, to the effect that a minimum of two supporting affidavits is required, is of course determinative of the issue. We would add only a brief comment to what we said in Duff. Since 1875 it has been the mandatory requirement of our statutes that any party to a civil action desiring an order for change of venue shall support his motion with the affidavits of at least two credible persons. Ark. Stat. Ann. 27-701 (Repl. 1962). That statute is not attacked nor is any legal reason offered for waiving it. As a practical matter it would appear that if the Commission cannot in fact obtain a fair trial, there would surely be available two credible persons who would have knowledge of such a fact and would supply the required affidavits. Appellant argues that the results of the nineteen cited trials make it obvious that it cannot receive a fair and impartial trial in the case at bar. Assuming, without deciding, that the assertion be a fact, it would not of itself justify this court in ignoring the statutory requirement for supporting affidavits. We are not permitted to so legislate. No objection was made at the trial level that the motion was not supported by affidavits. Appellant therefore reasons that we should not consider the landowner’s argument on appeal that the absence of the affidavits is fatal. We evaluate the absence of the affidavits in resolving the ultimate question, that is, whether the trial court abused its discretion in denying the motion for change of venue. In the circumstances here, which of course include the failure to comply with the governing statute, we cannot say the court abused its discretion. In support of its contention that the record is void of substantial evidence, appellant criticizes the use of two of the many comparable sales which were analyzed and compared with the Leavell property. On cross-examination Mr. Leavell improperly referred to an offer for a small portion of the 36-acre tract. Also, some of witness Barnes’ value figures were taken out of context to support appellant’s contention that Mr. Barnes was in error. If it he conceded that some or all of that testimony is subject to criticism, that fact would not necessarily destroy the substantiality of other testimony favorable to appellee. The real attack on the evidence concerns the subject, of highest and best use. The Commission contends there is no reasonable basis for fixing the highest and best use as being for residential property. It is true the Commission’s witnesses considered the most advantageous use presently and in the immediate future to be agricultural. It was conceded by one of its witnesses that Morrilton is growing1 south toward the river and that it was not unreasonable to predict future urban development upon the Leavell property; however, he insisted that any such development would be at a time far in the future. On the other hand, three expert witnesses for the landowner testified that the highest and best use as of the dale of the taking was for residential subdivision. The elements upou which that conclusion was based were supported by such factors as the 36 acres being in the city limits; all utilities are available; the town is already expanding in that direction; the development of the Arkansas Biver for navigation and recreation will hasten the subdividing of the Leavell tract; two additions have already been developed between the subject property and 'Morrilton; and it was argued that the topography of the acreage was most desirable for homesites. It is true, as is urged by the Commission, that we are concerned only with the present market value and not those values based upon speculative anticipation of future development. Arkansas State Highway Commission v. Watkins, 229 Ark. 27, 313 S.W. 2d 86 (1958). Consideration must be given to existing uses, but it cannot be seriously argued that present usage is the guideline. Tn fact, it was pointed out in Watkins that a tract, at the time of taking, may be utilized for fanning or it may be “covered with brush or boulders.” Nevertheless it is still proper in those situations to value the land for building purposes if those uses, at the time of taking, have an effect on the present market value of the land. Such was the opinion of the three expert witnesses for the landowner. "Witness Gene Hewitt testified that he had been in the real estate business in Morrilton since 1955 and recounted experience in the development of a nearby subdivision. He concluded just compensation to be $30,160, based upon the recited elements which support residential development in the area. Mr. Leavell lias lived on the land for many years and of course showed substantial acquaintance with lands in the area. His estimate of just compensation was more than the jury actually awarded. "We are unable to say as a matter of law that there is no substantial evidence to support the verdict. Affirmed. Jones, J., dissents.

George Rose Smith, Justice. On the night of October 26, 1967, a tractor-trailer combination belonging to the appellee collided with three cows, overturned, and sustained damage stipulated to be $7,287.42. The appellee brought this action for its loss, asserting that the appellant had unlawfully allowed the animals to run at large on the highway. Ark. Stat. Ann. § 41-430 (Repl. 1964); Rogers v. Stillman, 223 Ark. 779, 268 S.W. 2d 614 (1954). In appealing from a judgment for the plaintiff the appellant contends that there was no substantial evidence to support tlie jury’s verdict. tYe cannot sustain that contention. At the time of the accident Lavender (the appellant) and his family were in Colorado on a hunting trip. Lavendar had left his livestock in charge of his son-in-law, Leslie Curbow, who lived on Mr. Lavender’s place, next to the corral where the cattle were kept. Leslie’s brother, Billy Cur-bow, was tlie principal witness for the plaintiff. Billy, who testified by deposition before entering the military service, lived in the neighborhood and reached the scene of the accident about five minutes after it happened. lie testified that the three cow’s belonged to Mr. Lavender; he “personally” saw Lavender’s brand on the animals. lie went on to say that the cows had been at large for about three weeks and that he and his brother had been chasing them that same afternoon. According to Billy, the cattle escaped from a pasture that had not been used since the preceding spring. The fences wrere in disrepair; “. . . several places where you could walk through the fence, or step over the fence, or places there just wasn’t a fence.” The defense testimony was directed towuird rebutting Billy Curbow’s deposition. Mr. Lavender admitted in a discovery deposition that some of his cattle had gotten out, but lie disclaimed negligence by saying that “someone” had a uweck and ran over his fence and that a tree blew down across the fence, while he was in Colorado. Leslie' Curbow denied that he and Billy had chased the cowas that very afternoon. Leslie testified that the three animals belonged to Mr. Lavender’s son and had escaped a few hours before the accident by pushing aside the lower corner of a gate that was fastened by a chain about three and a half feet above the ground. From what wre have said it will be seen that the decisive issue for the jury was simply that of. deciding which witnesses to believe. The appellant argues that J3illy Ourbow’s testimony was “inconsistent and unclear,” but we certainly cannot say that it was not evidence of substantial quality. It may be compared to Hie testimony of the plaintiff in St. Louis S.W. Ry. v. Ellenwood, 123 Ark. 428, 185 S.W. 768 (1916), where we said, in language equally applicable to the case at hand: “In the case at bar the conditions surrounding tbe plain-lift, as testified to by the defendant’s witnesses, furnish a very strong argument against the credibility of his testimony, but this is as far as the record authorizes, us to go. It can not be said that the testimony of the plaintiff is contradicted by tli.e physical facts or is opposed to any unquestioned law of nature. His testimony related to matters, situations and conditions which might or might not have existed, and his right to recover depended wholly upon the truth or falsity of his testimony. His testimony was, therefore, evidence of a substantial character and if believed by the jury, was sufficient to warrant a recovery in this case.” There is nothing we need add to that statement. Affirmed.

Darrell Hickman, Justice. The question is whether it is usury, in violation of the Arkansas Constitution, for a creditor to charge a monthly rate of interest on an open account which exceeds 10% per annum on a monthly basis but would not exceed 10% if figured on an annual basis. The trial court held that it was usury and we affirm the judgment. McDonald Manufacturing is a Missouri firm that sold goods to Shackelford, an Arkansas plumbing and heating contractor. McDonald sold the goods on an open account and this transaction began in 1978. In 1979, when the account became delinquent, McDonald began adding a "penalty” to each monthly bill and did this for four months. In July the overdue amount was $7,889.02 and the extra charge was $118.34; in August a $171.89 penalty was added to the overdue amount of $11,459.24; in September the amount due was $14,725.34 and the penalty was $220.80; in October, the last time a penalty was charged to Shackelford, the penalty was $330.73 on a principal amount of $13,229.11. Those charges amounted to 1.5% or 18% per year from July through September. In October the charge amounted to interest of 30% per annum. McDonald filed suit and Shackelford defended on the basis of usury, which, if proved, would void the debt both as to principal and interest. ARK. CONST., art. 19 § 13. The trial court heard the case sitting as a jury and the facts are essentially undisputed. Beginning in October of 1979, McDonald’s monthly bill to its customers, noted at the bottom: “Past due invoices subject to 1-1/2% (ANNUAL RATE of 18%) service charge per month.” No penalty charges were made until the account had been delinquent for some time. Then, according to McDonald’s credit manager, a penalty was added to encourage Shackelford to pay the account. The credit manager said he was especially aware of Arkansas’s severe penalty for usury and therefore manually calculated the charge so it would not exceed 10% per annum. But, no doubt, this employee was figuring on an annual basis what the interest would be but the charge was made on a monthly basis. First, we agree with the trial court’s conclusion the penalty was interest, and that is not seriously disputed. See Arkansas Savings & Loan Assn. v. Mack Trucks of Arkansas, 263 Ark. 264, 566 S.W.2d 128 (1978); Bunn v. Weyerhauser, 268 Ark. 445, 598 S.W.2d 54 (1980). In Brooks v. Burgess, 228 Ark. 150, 306 S.W.2d 104 (1957), we held the debtor need not agree to a usurious rate of interest in order for the charge to be void; it is enough that the rate is charged. In Cagle v. Boyle Mortgage Co., 261 Ark. 437, 549 S. W.2d 474 (1974), we held that it is not necessary for the interest to have been actually collected to violate the constitution because the violation is in the charge. Superior Improvement Co. v. Mastic Corp., 270 Ark. 471, 604 S.W.2d 950 (1980), held that interest charged on a monthly basis violates the constitution even though over 10% would not be collected if the debt was considered on an annual basis. The reason for this is obvious: The debt in such a case is not one payable in a year. It is due monthly. So a creditor cannot charge over 10% monthly on an open account and then hope to stop short later, before the end of the year, and actually collect less than 10% of the sum figured on an annual basis. In Parks v. E. N. Beard Hardwood Lumber, Inc., 263 Ark. 501, 565 S.W.2d 615 (1978), we dealt with interest charged on an open account and found no usury. But the amount charged monthly was less than 10% per annum. Affirmed.

Richard B. Adkisson, Chief Justice. Appellee, Wade Bishop, and other property owners filed a petition to create the Appleby Road Street Improvement District with the city clerk of Fayetteville, Arkansas, pursuant to Ark. Stat. Ann. § 20-108 (Supp. 1981). The Fayetteville Planning Commission determined that the proposed improvement district was in keeping with the city’s master street plan, and the proposal was then submitted to the Fayetteville Board of Directors. The Board determined that the petition contained the requisite number of signatures of owners of a majority of the assessed value of real property within the proposed district but that the petition excluded certain property which would receive a substantial benefit from the proposed district; therefore, the Board adopted Ordinance No. 2830 denying the petition for creation of the district. Thirty-five days later appellee petitioned the circuit court for a writ of mandamus, praying that the Fayetteville Board of Directors be required to adopt an ordinance establishing the Appleby Road Street Improvement District in accordance with the original petition to create said district. Shortly thereafter, appellant, James W. Powell, intervened, alleging that he was a property owner within the proposed district whose interests would be adversely affected and that his interest was different from the existing parties. The Washington County Circuit Court held a hearing on whether the Board properly denied the creation of the district. Attorneys representing appellees, the city, and appellant were all present. The court ruled that the city should have created the proposed district and issued the writ of mandamus. Appellant brought this appeal, alleging that mandamus is not the proper procedure to compel the creation of the district. We first note that at the hearing before the trial court it was undisputed that mandamus was the proper remedy. Both the trial judge and the attorney for the city orally agreed that mandamus was proper, without objection by appellant. Although appellant objected to mandamus after the hearing, he in effect agreed at the hearing that mandamus was the proper procedure, thereby waiving his right to make an objection at a later time. See ARCiv.P Rule 46. Under these circumstances we affirm the trial court’s issuance of mandamus, but take this opportunity to correct a widely held misconception that mandamus is a proper method by which to review a city’s decision regarding the creation of an improvement district which arose as a result of our decision in Little Rock v. Boullioun, 171 Ark. 245, 284 S.W. 745 (1926). In Boullioun the city voted not to annex property to an improvement district and the trial court issued a writ of mandamus to compel the city to do so. This court affirmed the trial court’s holding that the city should have annexed the property, but we did not address the issue of whether mandamus was the appropriate remedy since it was not before us. However, we now decide that mandamus is not a proper method to review a city’s decision regarding the creation of an improvement district because Ark. Stat. Ann. § 20-108 (Supp. 1981) provides for an adequate remedy by way of an appeal to chancery court. See Wells v. Purcell, 267 Ark. 456, 592 S.W.2d 100 (1979). Affirmed.

¡ Frank Holt, Justice. The Little Rock City Board of Directors voted unanimously to change the zoning classification of property located at 4908-4932 West Markham, between Monroe and Jackson Streets, from a single family and quiet office classification to “C-3”, a general commercial classification as requested by the property owners. A Wendy’s restaurant is to be constructed on that site if rezoned. The appellants, who are property owners in that vicinity, filed suit in chancery court to have the rezoning set aside. The chancellor held there is a presumption the Board had acted in a reasonable manner and the appellants had failed to meet their burden of proof which requires them to demonstrate the arbitrariness of its action, so he denied the petition. We affirm. The appellants first contend: (1) The Court erred in not holding that the City of Little Rock was arbitrary and capricious in acting contrary to Arkansas law as stated in City of Little Rock v. Faith Evangelical Lutheran Church, 241 Ark. 187, 406 S.W.2d 875 (1966); (2) The Court erred in not finding the City of Little Rock to be arbitrary and capricious in creating a commercial zone in the middle of a residential block; (3) The Court erred in not finding that the zoning ordinance Number 14 196 was unrelated to the public health, safety, moral and general welfare of the city and that the power of the city board in passing the ordinance was, therefore, arbitrary and capricious; and (4) The Court erred in not finding the City of Little Rock to be arbitrary and capricious in failing to consider the rights of the residents who have relied upon the existing residential zoning. We will discuss these points together since they relate to whether the rezoning by the city was arbitrary and capricious. The standard of review applicable here is well settled. The decision of the chancellor will be affirmed unless it is clearly erroneous (clearly against the preponderance of the evidence). ARCP, Rule 52 (a); City of Little Rock v. Breeding, 273 Ark. 437, 619 S.W.2d 664 (1981). There we also said there is a presumption that the City Board acted in a fair, just, and reasonable manner when it rezones or refuses to rezone property and the burden is on the persons attacking the rezoning or refusal to show otherwise. The courts do not have the authority to review zoning legislation de novo. City of Conway v. Conway Housing Authority, 266 Ark. 404, 584 S.W.2d 10 (1979). There we said: [W]hen a municipality, pursuant to authority granted by the General Assembly, takes action in zoning classifications, it is exercising a legislative function and is not subject to review by the courts of its wisdom in so doing.... The judiciary has no right or authority to substitute its judgment for that of the legislative branch of government. In zoning matters the General Assembly has delegated legislative power to the cities in matters relating to zoning property. The role of the courts is, therefore, simply to determine whether or not the action of the municipality is arbitrary. Arbitrary has been defined as ‘arising from unrestrained exercise of will, caprice, or personal preference, based on random or convenient choice, rather than on reason or nature.’ Courts are not super zoning commissions and have no authority to classify property according to zones. To the same effect are City of Batesville v. Grace, 259 Ark. 493, 534 S.W.2d 224 (1976); and City of Little Rock v. Parker, 241 Ark. 381, 407 S.W.2d 921 (1966). The appellants argue, inter alia, that the rezoning here is inconsistent with The Heights/Hillcrest Plan, a guide for land use decisions adopted in an ordinance on March 17, 1981. This plan, of course, serves only as an advisory or guide and is not binding. Taylor v. City of LR, 266 Ark. 384, 583 S. W.2d 72 (1979). Here, eight property owners in the area testified that the rezoning to allow a Wendy’s restaurant to be built would have detrimental effects on the largely residential neighborhood; e.g., there would be increased traffic problems and hazards, noise, litter, unpleasant odors, vandalism, lights shining into windows at night, and rodents. One was of the view it would be spot zoning. Most of the witnesses were longtime residents in the area. None of the property owners testified they had relied upon the recent Heights/Hillcrest Plan, but some did testify they had chosen to live in the area because of the type of neighborhood it was. The property in question is, as indicated, located between Monroe and Jackson Streets on the north side of the Markham Street corridor. On the south side of Markham are located the State Hospital, the University of Arkansas Medical Center, War Memorial Park (directly across from the subject property), the State Health Department, and War Memorial Stadium. Jerry Speece, Zoning Administrator for the City of Little Rock, testified in detail with respect to the character of the area on the north side of Markham Street. To the east on the same block are located a single family home and an establishment which sells and rents scuba diving equipment. On the six blocks east of Monroe are located a savings and loan, a branch bank, Peck’s Drive-In, a liquor store, a drug store, and other businesses. In the three blocks west of the rezoned property are situated a McDonald’s restaurant, an Exxon station, the Black Angus restaurant, a Kentucky Fried Chicken restaurant, Rob’s restaurant, and a motel. Speece also testified that the volume of traffic on Markham is 6,000 to 8,000 vehicles per day below its capacity. He said the Heights/Hillcrest Plan is merely a general guide for city planning and, furthermore, the rezoning in this case is not inconsistent with that plan. He stated the rezoning did not constitute spot zoning, because spot zoning involves zoning one lot in a manner entirely different from the surrounding area, which was not done here. A building permit mandates certain lighting requirements to prevent reflection of lights on adjacent property. The zoning ordinance requires the construction of a four foot opaque fence between commercial and residential property. Access to the rezoned property is limited to Markham Street. In his opinion, as a professional planner, the rezoning from single family and quiet business to commercial use is a reasonable classification. We cannot say that the decision of the chancellor holding that the rezoning by the City Board of Directors was not arbitrary and capricious is clearly erroneous. Neither is the decision of the chancellor contrary to our holding in City of Little Rock v. Faith Evangelical Lutheran Church, supra. There we held the refusal of the City of Little Rock to rezone these properties to “F” commercial was not an arbitrary and capricious decision. We did not hold that it would have been arbitrary and capricious for the city to so rezone the property. We did say, as appellants argue, the proper zoning classification for the property would be “E-l” Quiet Business, but that dictum was merely a comment on the evidence presented in that case and not a decision of this court imposing on the City an unalterable zoning classification for this location. Appellants next contend that the City Board acted arbitrarily and capriciously in limiting residents to ten minutes in which to present their objections. However, the City Planning Commission had held two public hearings at which the residents were allowed to state their objections. These objections were transcribed and furnished to the City Board before the meeting at which the rezoning decision was made. Hence, this case is unlike Wenderoth v. Freeze, Mayor, 248 Ark. 469, 452 S.W.2d 328 (1980), upon which appellants rely, where we held that property owners were arbitrarily denied their right to present their objections to a reclassification to the Planning Commission. Next appellants assert that the court erred in excluding from the evidence the answers to interrogatories given by the members of the City Board. The appellants sought to introduce the interrogatories and answers during the cross-examination of Speece. Although the interrogatories were placed in the record, they are not abstracted. The answers were neither placed in the record nor abstracted. The burden is upon the appellant to bring up a record sufficient to demonstrate that the trial court committed reversible error. King v. Younts, 278 Ark. 91, 643 S.W.2d 542 (1982); SD Leasing v. RNF Corp., 278 Ark. 530, 647 S.W.2d 447 (1983). Appellants failed to meet their burden on this issue. Finally appellants contend that the chancellor abused his discretion in refusing to grant them a continuance in order to subpoena the members of the City Board of Directors, after the chancellor refused to admit the interrogatories into evidence. Eight witnesses had testified at the time the appellants moved for a continuance. It is apparent from the record that they had ample opportunity to subpoena whomever they wished before the hearing. Pursuant to ARCP, Rule 40, the granting or denial of a continuance is a matter within the sound discretion of the court, and such a ruling will not be disturbed unless the trial court abused that discretion by acting arbitrarily and capriciously. Bolden v. Carter, 269 Ark. 391, 602 S.W.2d 640 (1980). Here, the chancellor did not abuse his discretion. Affirmed. Hickman, Smith and Purtle, JJ., dissent.

Per Curiam. The appellees have moved to dismiss this appeal on the ground that the notice of appeal was not filed within the time allowed by ARCP Rule 4. We decline to dismiss the appeal. Jurisdiction is in this Court pursuant to Rule 29 (1) (c). The final decree was entered on September 2, 1982. On September 13, 1982, a motion to amend the decree was filed pursuant to ARCP Rules 59 (a) (6) and (8). On October 7, 1982, the trial court denied the motion to amend. Notice of appeal was given on November 4, 1982. Appellees contend that the appeal should be dismissed because the notice of appeal was not given within 30 days of the entry of judgment, ARAP Rule 4 (a), nor was it given within 10 days from the entry of the order denying the motion to amend. ARAP Rule 4 (d). The motion would be well taken if the appellant is attempting to appeal from any holding in the original judgment. However, the notice of appeal provides that the appellant seeks to appeal only from the order denying the motion to amend, which may have decided new questions. Since the motion to dismiss, to which there has been no response, does not make it clear that the notice of appeal was necessarily too late, the motion must be denied.

George Rose Smith, Justice. In this slip-and-fall case the plaintiff Willis argues that the trial judge should not have directed a verdict for the defendant nursing home. We agree with the trial court. (Our jurisdiction includes tort cases. Rule 29 [1] [o].) At about 9:45 a.m. Willis was about to visit Jim Sutherland, a patient in the nursing home. Willis testified that as he reached the foot of Sutherland’s bed “my feet went everywhere.” While he was still on the floor he heard an employee of the nursing home say, “I been telling them all the time that something like this was going to happen.” The other relevant proof is that Sutherland had been spitting at night for several years and often missed the waste can near the head of his bed, that the floor had been cleaned with a wet mop between 8:30 and 9:00 a.m., and that nothing was found on the floor when the cleaning employee checked the area not more than ten minutes after Willis fell. Willis had the burden of proving that he slipped on a substance which either had been put there by the defendant’s negligence or had been there so long that the defendant should have known of it and was negligent in not removing it. AMI Civil 2d, 1105 (1974). Willis failed to make a case for the jury. He did not even prove what substance, if any, caused his fall. He argues that it could have been Sutherland’s sputum, though there is no proof that Sutherland ever spat either during the daytime or near the foot of his bed, or that it could have been moisture left by the mop at least 45 minutes earlier, through no one testified that the floor was other than dry when Willis fell. The plaintiff’s proof fell decidedly short of proving that his fall was caused by the nursing home’s negligence. The trial judge had no choice except to direct a verdict for the defendant. Affirmed.

Per Curiam. Petitioner William E. Pitcock was convicted by a jury of burglary, theft of property and robbery and sentenced to a total term of 20 years imprisonment in the Arkansas Department of Correction and fined $300.00. The Court of Appeals affirmed. Pitcock v. State, not designated for publication (August 26, 1981). Petitioner now seeks permission to proceed in circuit court for postconviction relief pursuant to A.R.Cr.P. Rule 37. I. Petitioner raises a number of issues in his lengthy petition. He contends that each one establishes that his sentence was imposed in violation of the laws and constitution of this State and the United States. The allegations of constitutional violations are: A. Petitioner was denied a speedy trial and denied due process because he was held in jail without counsel from the date of his arrest on December 26, 1979, until May 1, 1980. We find no merit to either argument. The trial in this case was held in November, 1980, more than six months after counsel was appointed. Petitioner does not say that he was denied a fair trial or that he was prejudiced by the delay in appointing counsel. Relief cannot be granted on an unsupported allegation. Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1982). There is also no merit to the claim that he was denied a speedy trial. Petitioner’s trial was held within the second full term of court following his arrest, which was within the time period for a speedy trial; in fact, since his parole was revoked and he was incarcerated for another crime pending trial on the instant charges, he could have been tried even later. Furthermore, the speedy trial issue was raised at trial and could have been raised on appeal. The question of the proper time for appointment of counsel could also have been raised at trial. Rule 37 was not designed to take the place of raising issues in accordance with procedure. Collins v. State, 271 Ark. 825, 611 S.W.2d 182 (1981). B. Petitioner was prejudiced by the prosecutor’s commenting in closing argument that he was brought from prison for trial and by the failure of the court reporter to transcribe the entire opening statements and closing arguments. The court reporter transcribed only the objections made during the opening statements and closing arguments. This in itself is not a denial of due process of law as petitioner suggests. The State is required to afford appellant a record of sufficient completeness so that proper consideration can be given to the errors argued on appeal. Mayer v. City of Chicago, 404 U.S. 189 (1971); Butler v. State, 264 Ark. 243, 570 S.W.2d 272 (1978). There is no absolute right to a verbatim transcript of the opening and closing remarks. If the prosecutor did mention petitioner’s being in prison on other charges, it may have been error; but since the issue could have been raised at trial relief can be granted under Rule 37 only if the error was a fundamental one because petitioner is alleging a constitutional violation, not ineffective assistance of counsel. An evidentiary hearing is warranted when an allegation of ineffective assistance of counsel indicates that counsel’s representation prejudiced the petitioner, and that the prejudice was such that he may have been denied a fair trial. Blackmon v. State, 274 Ark. 202, 623 S.W.2d 184 (1981). To prevail on an allegation of a constitutional violation, however, the constitutional question presented must be of such fundamental nature that the judgment is rendered void. Swindler v. State, 272 Ark. 340, 617 S.W.2d 1 (1981); Hulsey v. State, 268 Ark. 312, 595 S.W.2d 934, reh. denied. 268 Ark. 315,599 S.W.2d 729 (1980). See also Collins, supra; and Rogers v. State, 265 Ark. 945, 582 S.W.2d 7 (1979). Rule 37 does not provide a method for the review of mere error in the conduct of the trial or to serve as a substitute for raising issues at trial or on appeal. Swindler, supra; Clark v. State, 255 Ark. 13, 498 S.W.2d 657 (1973). Even if we accepted petitioner’s statement of the prosecutor’s remarks, we do not find that the error was of such fundamental nature that the judgment in his case was rendered void. (Petitioner did not take the stand, therefore the question of his prior crimes did not arise in testimony. The State withdrew the habitual offender allegation on its own motion and the record contains no reference in the presence of the jury to petitioner’s prior convictions or to his incarceration in prison. Defense counsel made a point of asking the court to excise one word from a pre-trial statement given by petitioner which suggested that he was out on bond when the crime was committed. The emphasis placed on assuring that no reference would be made to petitioner’s prior offenses casts doubt on petitioner’s claim that the prosecutor made the prejudicial statement as alleged.) C. The pretrial identification procedures were unconstitutional and the jury should have been instructed on identification testimony. Petitioner says that a photograph was taken of him at the county jail and shown to witnesses so that they could identify him at trial. The record indicates that the witnesses who identified petitioner at trial were eyewitnesses to the crime. They testified that they recalled him from the crime scene. No mention is made of a photograph, and petitioner has not demonstrated any undue prejudice to him resulting from the identification process. Petitioner’s allegation that the court refused to instruct the jury on identification testimony is unclear. It does not appear from the record that any such instruction was requested. Petitioner seems to say that he was entitled to an instruction of some sort on identification testimony and that the trial court should have supplied it of its own volition. If this is his meaning, he is not correct. See Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980). D. His conviction was based on evidence that was circumstantial, insufficient and inadmissible hearsay. Attacks on the nature and sufficiency of the evidence and the credibility of witnesses are direct challenges to the judgment; and, as such, they are not proper challenges under Rule 37. McCroskey v. State, 278 Ark. 156, 644 S.W.2d 271 (1983). Rule 37 affords a remedy when the sentence in a case was imposed in violation of the constitution of the United States or of this State or “is otherwise subject to collateral attack.” Rule 37.1; Swisher v. State, 257 Ark. 24, 514 S.W.2d 218 (1974); Thacker v. Urban, 246 Ark. 956, 440 S.W.2d 553 (1969); Clark v. State, 242 Ark. 584, 414 S.W.2d 601 (1967). II. Petitioner also alleges ineffective assistance of counsel in that his attorney did not point out that people involved in the “scheme” were not charged. He does not say who the other persons were or to what scheme he is alluding. As a conclusory statement, the allegation does not merit further consideration. Bosnick, supra; Smith v. State, 264 Ark. 329, 571 S.W.2d 591 (1978). He contends that counsel conferred with him less than one hour and was thus unprepared for trial. He gives no example of counsel’s lack of preparation, nor does he allege that he was prejudiced by counsel’s conduct. To establish ineffective assistance of counsel, a petitioner must show by clear and convincing evidence that he was prejudiced by his attorney’s representation and the prejudice was such that he was denied a fair trial. Hill v. State, 278 Ark. 194, 644 S. W.2d 282 (1983). Petitioner here has not demonstrated that counsel was less than competent. Petition denied.

Robert H. Dudley, Justice. Billy and Elda Dumas, appellees, filed a petition in the County Court of Madison County alleging that they have no access to their lands. They petitioned the court to appoint road viewers to lay out a road connecting their land to a county road running along appellant’s land. The county court appointed three viewers who determined that it is necessary for appellees to have a road laid over appellant’s land. They established where the road should be and assessed damages totaling $2,500. The county judge issued an order in accordance with the viewers’ report and appellant, Sheila Castleman, appealed to circuit court. The circuit court found that it is necessary that the appellees have a road laid out and established to their property; that the road laid out by the viewers is the most reasonable and feasible route considering the convenience and inconvenience to all parties concerned; and that the damages set by the viewers for the road easement are reasonable and proper. We affirm. Jurisdiction is in this Court pursuant to Rule 29 (1) (c). Appellant raises three points for reversal. First she alleges that the circuit court erred in failing to consider the requirement of necessity for the proposed road as required by Ark. Stat. Ann. § 76-110(Repl. 1981). In Pippin v. May, 78 Ark. 18, 21, 93 S.W. 64 (1908), we stated as follows: In determining whether such a road is necessary, the court must, of course, take into consideration, not only the convenience and benefit it will be to the limited number of people it serves, but the injury and inconvenience it will occasion the defendant through whose place it is proposed to extend it. After considering all these matters, it is for the court to determine whether the road is, within the meaning of the law, necessary or not. The trial court specifically found that it was necessary that the appellees have a road laid out to their property. Appellant, however, argues that appellees had access to their land over another portion of appellant’s land, although the alternate route was less convenient to the appellees. Appellant is correct that mere inconvenience is not a sufficient reason to entitle one to condemn a private right-of-way over another’s land. Mohr v. Mayberry, 192 Ark. 324, 90 S.W.2d 963 (1936). However, in this case, unlike the situation in Mohr, the evidence established that appellees did not have a way off their own land to the highway and were not seeking to condemn appellant’s land for their own convenience. The road viewers, the county court, and the circuit court all found that the proposed road was necessary to give the appellees a means of ingress and egress. In addition, the proposed route was found to be the most convenient and the least injurious to all parties involved, including appellant. The appellant did not appear in person at the trial and her attorney called no witnesses. All of the witnesses were called by the appellees. Although appellant argues that she offered and would have preferred the road on another portion of her property, there is no evidence of this in the record. Second, appellant argues that the circuit court erred in requiring the appellant to show that the order of the county court was incorrect. There was no prejudice because the circuit court allowed the case to proceed to trial with the appellees establishing their case de novo as required by Ark. Stat. Ann. § 27-2007 (Repl. 1979). See also Armstrong v. Cook, 243 Ark. 230, 419 S.W.2d 308 (1967). Appellant contends that despite the appellees’ assumption of the burden of proceeding first with their proof, she erroneously retained the burden of establishing the critical issues such as necessity and damages. There is no merit to appellant’s contentions, however, because the findings of the trial court on all of the critical issues are supported by the unrefuted evidence presented by the appellees and are not clearly erroneous. ARCP Rule 52; Alley v. Rodgers, 269 Ark. 262, 599 S.W.2d 739(1980). Finally, appellant contends that the circuit court erred in assessing damages. The road viewers set appellant’s damages at $2,500. Ark. Stat. Ann. § 76-110 (Repl. 1981) provides for the assessment of damages by the viewers and the trial court found their assessment reasonable. The viewers testified that in assessing damages they considered the value of the land taken, the fact that fences would have to be built, and the “nuisance value.” The appellant did not submit any evidence nor did she refute the qualifications of the viewers or their testimony. The trial court’s findings on this issue were supported by the evidence and not clearly erroneous. ARCP Rule 52. Although this case is affirmed, the appellant is entitled to her costs of the appeal to this Court in this particular type of case. The reason is that it would be most unfair to take one’s land and require her to pay the costs of that proceeding. Parrott v. Fullerton, 209 Ark. 1018, 193 S.W.2d 654 (1946). Affirmed. Hickman, J., concurs. See Dowling v. Erickson, 278 Ark. 142, 644 S.W.2d 264 (1983).

Darrell Hickman, Justice. This appeal raises the question of whether it is error to instruct the jury that rape can be committed by engaging in sexual intercourse or deviate sexual activity when only sexual intercourse is charged. We find no error since there is no demonstration of prejudice. There was substantial evidence of both sexual acts in this case. This issue was first considered in Clayborn v. State, 278 Ark. 533, 647 S.W.2d 433 (1983). There we held that even though the evidence was sufficient to support a finding of guilt, the conviction must be reversed because the defendant was only charged with raping the woman by deviate sexual activity, not by sexual intercourse. The main basis of our decision was that two separate crimes of rape exist: rape by sexual intercourse and rape by deviate sexual activity. We said “. . . two different crimes are involved. . .and the essential elements of the crimes differ.” We were wrong in that regard and overrule Clayborn v. State, supra, as it conflicts with our later decisions and our holding in this case. Ark. Stat. Ann. § 41-1803 (Supp. 1985) provides for just one offense of rape with two different ways of commission. The statute itself sets forth the elements of rape: (1) A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person: (a) by forcible compulsion; The elements of the offense are the sexual act and forcible compulsion. Clayborn interpreted the statute to read that the reference to different kinds of sexual acts created two separate crimes. In our most recent decision on this statute, we clearly rejected the rationale in Clayborn. In Wood v. State, 287 Ark. 203, 697 S.W.2d 884 (1985), we held there is only one crime of rape under Ark. Stat. Ann. § 41-1803. Wood had been charged with rape by sexual intercourse. At the trial he changed his story by saying he had merely fingered the victim instead of having sexual intercourse with her. The state was allowed to amend the information charging rape either by sexual intercourse or deviate sexual activity. The court instructed the jury that the state had the burden of proving rape by “either sexual intercourse or deviate sexual activity.” We said “[t]he amendment did not change the nature or degree of the crime.” Our holding was contrary to Clayborn v. State, supra. Several other recent decisions support this reasoning. Before Clayborn, in Browning v. State, 274 Ark. 13, 621 S.W.2d 688 (1981), we permitted the introduction of evidence of deviate sexual activity although the charge was rape by sexual intercourse. We did so for two reasons: a general charge of rape was made under the statute which had not been challenged by a bill of particulars, and the state was entitled to prove the entire criminal episode. In two cases since Clayborn, we unanimously held that there is only one offense of driving while intoxicated with two ways of violating the act, either by operating or controlling a vehicle while intoxicated or operating or controlling a vehicle when blood alcohol content is 0.10% or more. Yacono v. State, 285 Ark. 130, 685 S.W.2d 500 (1985); Wilson v. State, 285 Ark. 257, 685 S.W.2d 811 (1985). In Wilson the defendant was charged under one subsection of the act but convicted under the other subsection. We said: The appellant next argues that he was charged under subsection (b) of the act but was convicted under subsection (a) of the act, and therefore, his conviction must be reversed. Again, the argument is without merit. The charging instrument, whether a citation or information, is not in the record. The municipal court appeal transcript reflects that appellant was ‘charged with the offense of DWI one.’ Other parts of the record indicate that he was charged with ‘DWI one.’ Such a charge is sufficient even though the evidentiary requirements of the subsections are different. (Italics supplied.) The case before us presents almost the same question we had in Clayborn. Cokeley was charged with rape by sexual intercourse. The victim testified she was beaten, threatened with a knife, forced to commit oral sex on Cokeley and raped by sexual intercourse. Cokeley’s defense was consent. He did not deny he was with the victim or that sexual acts occurred. He said the victim voluntarily committed oral sex on him. He said he could not get an erection so they did not have sexual intercourse. Cokeley also claimed he was intoxicated. The victim’s testimony was corroborated by passersby who picked her up in the middle of the night when she ran naked from Cokeley’s vehicle. She was immediately taken to a police station, later submitted to a medical examination and subsequently made a statement to the police in which she said she was raped by sexual intercourse and forced to commit oral sex. The trial court simply instructed the jury according to the statute that a person commits rape if he engages in sexual intercourse or deviate sexual activity with another person by forcible compulsion and defined the two acts. The evidence supports a finding of guilt of rape by either or both means. The issue in this case is not the manner of the rape, but whether rape by forcible compulsion indeed occurred. There is no argument that there is not substantial evidence to support a finding that Cokeley raped the victim either way. Cokeley was convicted of the crime with which he was charged — rape. It was not error to give the instruction. No bill of particulars was filed in this case. The victim had stated to the police in a written statement, provided to the defense, that both types of sexual misconduct occurred; the prosecuting attorney argued in his opening statement that both sexual intercourse and oral sex occurred. Cokeley cannot claim surprise by the evidence of deviate sexual activity. We need not speculate on the outcome if a homosexual were charged with the rape by sexual intercourse of a person of the same sex and that defendant timely objected and demonstrated prejudice. The only question before us in this case and those cases cited are whether one crime of rape exists with two means of commission or whether rape is two separate crimes; and whether prejudicial error is demonstrated. Since there is only one crime of rape with two possible means of commission, Cokeley was not prejudiced by the jury being instructed as to the two sexual acts that could be committed to constitute rape. There was substantial evidence of both acts. We will not reverse a lower court’s decision unless there is prejudicial error. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984). Finding no prejudice, we affirm the conviction. Purtle, J., not participating. Dudley and Newbern, JJ., dissent.

Per Curiam. Petitioner Billy Gale Henry was found guilty by a jury of being an accomplice to capital murder and was sentenced to death. He was also found guilty of the offense of hindering apprehension or prosecution of another person and sentenced as a habitual offender to an additional term of 40 years imprisonment in the Arkansas Department of Correction. We affirmed both convictions but reduced the sentence for capital murder to life without parole. Henry v. State, 278 Ark. 478, 647 S.W.2d 419 (1983). Petitioner now seeks permission to proceed in circuit court for postconviction relief pursuant to Ark. R. Crim. P. Rule 37. Petitioner was committed in 1981. His petition for postconviction relief is therefore untimely under Rule 37.2(c) since it was not filed within three years of the date of commitment, unless he has stated some ground for relief which would render the judgment of conviction absolutely void. Collins v. State, 271 Ark. 825, 611 S.W.2d 182, cert. denied, 452 U.S. 973 (1981). He raises two related issues, incompetence to stand trial and lack of jurisdiction by virtue of his competence, which he asserts would void the judgment in his case and argues that the court should have ordered sua sponte a hearing on his competence. As he fails totally to establish that he was incompetent, the petition is dismissed for failure to state a ground sufficient to void the convictions. It is clear that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel and to assist counsel in preparing his defense may not be subjected to a trial. Drope v. Missouri, 420 U.S. 162 (1975). If the convicted defendant did not raise the issue of his competence at trial, he may nevertheless assert his incompetence to stand trial in a petition for postconviction relief since a person who is incompe tent cannot knowingly and intelligently waive his right to have the court determine his capacity to stand trial. See Pate v. Robinson, 383 U.S. 375 (1966). The petitioner who asserts his incompetence for the first time in a petition for postconviction relief, however, has the heavy burden of demonstrating with facts that he was not competent at the time of trial. The mere fact that he can document a history of mental health problems or show that counsel could have framed a defense of incompetence, but chose not to do so, does not in itself entitle a petitioner to a new trial under our postconviction rule. Glick v. State, 286 Ark. 133, 689 S.W.2d 559 (1985); Dudley v. State, 285 Ark. 160, 685 S.W.2d 170 (1985). Petitioner contends that he has a long history of irrational behavior, delusions and psychotic behavior dating back to his service in World War II. He states that he was on a psychiatric ward during the service and later was incarcerated in psychiatric facilities while in state prisons. He says that he discussed a stay in Ft. Roots, a mental health facility, with a Veterans Administration psychiatrist on the day of the crime. A report by another VA psychiatrist made after the crime recommended a thirty-day commitment to the Arkansas State Hospital for evaluation. (The VA doctor noted in his report that psychosis was doubtful.) None of this history was brought to the attention of the trial court on the issue of petitioner’s competence to stand trial. He did ask that the VA doctor’s recommendation of an evaluation be included in the record and further requested a mental examination before sentencing, but he never argued that he was incompetent to stand trial. To the contrary, petitioner sought and was granted leave to proceed as co-counsel. The record contains many instances where petitioner took an active part in his trial in a manner which strongly indicates that he was rational and capable of understanding the proceedings and assisting in his defense. In light of petitioner’s extensive role at trial and his failure to provide any even slightly convincing evidence that he was incompetent, his allegation that the trial court should have ordered a hearing on his competence does not warrant an evidentiary hearing. Petition dismissed. Purtle, J., not participating.

David Newbern, Justice. This is a real estate sale case in which the chancellor granted rescission in favor of the appellant on the ground of mutual mistake but did not award the money damages she claimed. The damages she sought were for her expenses in constructing improvements which subsequently hqd to be removed from the land. The appellant claims it was error for the chancellor to have found she did not rely on misrepresentations made by the appellees through their real estate agent, and thus it was error to refuse her damages for fraud plus costs and an attorney fee. On cross-appeal, the appellees contend the only possible basis for the rescission was fraud, not mistake, and the chancellor erred in granting rescission once he had found there was no reliance by the appellant on any active or constructive misrepresentations of the appellees. We find the chancellor was correct on all counts, and thus we affirm on both appeal and cross-appeal. 1, Rescission The chancellor found that conversations between the appellant and the appellees’ agent showed that both parties were under the mistaken impression that the low, flat portion of land in question was suitable for building permanent structures such as a barn, horse corral and fencing. In fact, however, the area where the appellant attempted to build a barn and corral and which she wanted to use as pasture for horses was subject to severe and frequent flooding. The chancellor held there was thus a mutual mistake of fact making rescission proper. While there was evidence the appellees had known of one instance of severe flooding on the land, the evidence did not show they knew it was prone to the frequent and extensive flooding which turned out to be the case. Other matters not known to the parties were that the low portion of the land, about two-thirds of the total acreage, is in the 100 year floodplain and that a Pulaski County ordinance, No. 83-OR-11, requires a seller of land lying in the floodplain to inform the buyer of that fact no later than ten days before closing the transaction. The county planning ordinance also requires that no structures be built in the floodplain. If the chancellor’s decision had been to permit rescission because of the parties’ lack of knowledge of these items, we would have had before us the question whether the mistake was one of law rather than fact and thus perhaps irremediable. But see Glasgow v. Greenfield, 9 Ark. App. 224, 657 S.W.2d 578 (1983). While the chancellor mentions these items, his basis for rescission was the mutual lack of knowledge about the extent of the flooding, and misunderstanding of the suitability of the property, as a matter of fact, for the buyer’s purposes which were known to both parties. We sustain his finding that there was a mutual mistake of fact. A mutual mistake of fact as to a material element of a contract is an appropriate basis for rescission. Troxell v. Sandusky, 247 Ark. 898, 448 S.W.2d 28 (1969); Blythe v. Coney, 228 Ark. 824, 310 S.W.2d 485 (1958). Thus we affirm on cross-appeal. 2. Damages for Fraud The chancellor refused to allow the appellant any damages for the loss she sustained with respect to the improvements she had placed in the floodplain. He found the appellant had made an independent investigation of the propensity of the property to become flooded and had ascertained, erroneously, that the property was not in the floodplain. Thus, in spite of the legal duty on the part of the appellees to tell the appellant that the land was in the floodplain, and what might have been the resultant constructive fraud upon failure to inform her, he held that fraud may not be the basis of a damages award absent reliance on the misrepresentation. For the same reason the chancellor refused to base his decision on any alleged fraud resulting from the appellees’ failure to tell the appellant what they may have known about the land’s propensity to flood. He was correct. An essential element of an action for deceit is reliance by the plaintiff on the defendant’s misrepresentation. MFA Mutual Insurance Co. v. Keller, 274 Ark. 281, 623 S.W.2d 841 (1981). In view of the strong evidence, including her own testimony, that the appellant made her own investigation as to whether the land flooded, the extent to which a creek running through the land was in the floodplain and the feasibility of bridging the creek above the floodplain, we can hardly say the chancellor’s factual determination that the appellant did not rely on the failure of the appellees to give her information known to them or which they had a duty to disclose to her under the ordinance was clearly erroneous. Ark. R. Civ. P. 52(a). We find nothing in the law of this jurisdiction requiring us to say that when the appellant chose to seek rescission rather than affirm the contract and sue for damages, either out of pocket or benefit of bargain, she waived any possible damages claim. See D. Dobbs, Remedies, § 9.4 (1974). The point here is that we find no reason to upset the chancellor’s conclusion that the appellant did not rely upon the appellees’ misrepresentation of the facts as to whether the land was subject to flooding or their failure to notify the appellant that the land was in the “legal” floodplain. When rescission is based on mutual mistake rather than fraud, the recoveries of the parties are limited to their restitutionary interests. Restatement (Second) of Contracts § 370 (1979). As the appellant could show no benefit conferred on the appellees from her attempted improvements on the land, she was entitled to no recovery in excess of the return of the purchase price, which was awarded to her by the chancellor, as well as cancellation of her note and mortgage. 3. Costs and Attorney Fee The appellant contends costs should have been awarded to her as the prevailing party. For this proposition she cites Ark. R. Civ. P. 54. Rule 54(d) says, in relevant part, costs are to be allowed to the prevailing party as a matter of course, “unless the court otherwise directs.” Here the court directed that each party bear his own costs. The appellant gives us no reason to hold the chancellor abused the discretion vested in him under the Rule, ¿xcept that the appellees were guilty of fraud. The appellant’s argument on the attorney fee is that it can be awarded when there is a “recognized ground of equity.” Lewallen v. Bethune, 267 Ark. 976, 593 S.W.2d 64 (Ark. App. 1980). She then states that “fraud” is such a ground. As we are affirming the chancellor’s refusal to find fraud as the basis of rescission, we need not go into the question whether one may recover costs under Rule 54(d) or an attorney fee when fraud has been alleged successfully. Affirmed. Purtle, J., not participating.

Robert H. Dudley, Justice. Appellant, the plaintiff below, brought suit against appellees, who are administrators and engineers for the Arkansas Highway and Transportation Department, for injuries sustained in a car-truck wreck which occurred at an abnormally dangerous highway intersection. Appellant alleged that the creation of the intersection was a negligent act, and that allowing it to continue in existence amounted to a willful and wanton disregard of appellant’s safety. The trial judge dismissed the suit on the ground that the appellees were immune from tort liability for acts which occurred within the course of their state employment. We affirm. Sovereign immunity and the immunity of state officers and employees are two different concepts with two different origins and purposes. Sovereign immunity originates with Article V, § 20 of the Arkansas Constitution which provides, “[t]he State of Arkansas shall never be made defendant in any of her courts.” There is no similar constitutional doctrine providing for immu nity of state officers and employees. Such a doctrine must come from either common law or statute. Judge Learned Hand stated that the doctrine of immunity for public employees was based upon a policy of freeing public employees from fear of retaliation for unpopular decisions so that they could function freely and thereby give unflinching discharge of their duties. Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949), cert. denied, 339 U.S. 949 (1950). William L. Prosser also believed that public employees would be unduly intimidated in the discharge of their duties if they could be sued for actions which were later determined to be negligent. W.L. Prosser, Law of Torts 987 (4th ed. 1971). Another reason advanced for the immunity of state employees is that without immunity, highly skilled employees would not accept public positions because the potential liability would not be commensurate with the relatively low compensation which public employees receive. Van Alstyne, Government Tort Liability: A Public Policy Prospectus, 10 UCLA L. Rev. 463 (1963); Smith v. Cooper, 256 Or. 485, 475 P.2d 78 (1970); Annot., 45 A.L.R.3d 857 (1970). In 1979, the State of Arkansas did not have a statute providing immunity for state officers and employees. At that time, this Court refused to create immunity by judicial fiat and held that a state employee was not protected by the sovereign immunity clause and could be liable for an act of negligence which was committed while engaged in the performance of official duties. Grimmett v. Digby, 267 Ark. 192, 589 S.W.2d 579 (1979). At its next session, in 1981, the General Assembly enacted Ark. Stat. Ann. § 13-1420 (Supp. 1985), which provides: Officers and employees of the State of Arkansas are immune from civil liability for acts or omissions, other than malicious acts or omissions, occurring within the course and scope of their employment. Summarizing this brief overview of the immunity doctrines, the Arkansas Constitution provides for sovereign immunity and Ark. Stat. Ann. § 13-1420 provides for immunity of officers and employees of the state. The suit at bar is filed against employees of the state, and under the quoted statute those employees are immune from civil liability for non-malicious acts occurring within the course of their employment. The appellant, quite understandably, argues that the recent case of Carter v. Bush, 283 Ark. 16, 669 S.W.2d 902, substituted opinion, 677 S.W.2d 837 (1984), states that the quoted statute does not provide immunity for officers and employees of the state. The Carter case does provide that the statute is not a grant of immunity. We expressly overrule that part of Carter. The ruling of the trial court must also be affirmed for a second reason. While this action is nominally filed against state employees, it is in reality an action against the State of Arkansas in violation of the sovereign immunity clause. The standard for determining whether the State is the real party in interest is set out in Page v. McKinley, 196 Ark. 331, 118 S.W.2d 235 (1938): Accordingly it is well settled, as a general proposition, that, where a suit is brought against an officer or agency with relation to some matter in which defendant represents the state in action and liability, and the state, while not a party to the record, is the real party against which relief is sought so that a judgment for plaintiff, although nominally against the named defendant as an individual or entity distinct from the state, will operate to control the action of the state or subject it to liability, the suit is in effect one against the state and cannot be maintained without its consent. In this case the real party against whom relief is sought is the State since, under the provisions of Ark. Stat. Ann. § 12-3401 (Repl. 1979), a 1979 statute, the State would be required to pay any judgment obtained against appellees. The statute provides: The State of Arkansas shall pay actual, but not punitive, damages adjudged by a state or federal court, or entered by such a court as a result of a compromise settlement approved and recommended by the Attorney General, against officers or employees of the State of Arkansas, or against the estate of such an officer or employee, based on an act or omission by the officer or employee while acting without malice and in good faith within the course and scope of his employment and in the performance of his official duties. The appellant next contends that even if appellees, as employees, have qualified immunity, they are not immune from liability for malicious acts, and that their acts in this situation were willful and wanton. The statute conferring immunity to officers and employees does not protect them if they act maliciously. However, the appellant has failed to allege facts sufficient to support the claim of malicious conduct. A bare allegation of willful and wanton conduct will not suffice. See Miller v. Ensco, Inc., 286 Ark. 458, 692 S.W.2d 615 (1985). Affirmed. Purtle, J., not participating.

Per Curiam. Appellant, an inmate of the Arkansas Department of Correction, filed a petition for writ of mandamus against the Director of the Department taking issue with the Department’s computation of his parole eligibility date. The circuit court denied relief, and appellant appealed to this Court. When he sought to file a handwritten brief, it was returned to him to be typed since we do not accept handwritten briefs in a direct appeal. See Green v. State, 277 Ark. 129, 639 S.W.2d 512 (1982). Appellant now seeks a writ of mandamus to compel the Department of Correction to provide him with a typewriter so that he may type the brief and resubmit it for filing. In criminal cases where appellants are entitled to appointment of counsel, we will appoint an attorney upon proper motion for inmates who are unable to comply with our rules. Green v. State. In civil matters, including suits against the Department of Correction challenging parole eligibility dates, we will appoint counsel only where the appellant is able to make a substantial showing that he is entitled to relief and that he cannot proceed without counsel. Virgin v. Lockhart, 288 Ark. 92, 702 S.W.2d 9 (1986). The same general criteria apply to civil suits in which the appellant contends that he cannot submit a conforming brief without access to a typewriter. That is, in those cases where a pro se appellant submits a motion for permission to file a handwritten brief in which he makes a substantial showing that his suit has merit and that he is unable to submit a typed brief, we will accept a legible handwritten brief. Appellant has thirty days to file a typed brief or submit a motion for permission to file a handwritten brief. Petition denied. Purtle, J., not participating.

George Rose Smith, Justice. This action for the wrongful death of Thomas Albert Zajac arose from a crossing accident in Pulaski County in September, 1984. Zajac was killed. The jury’s verdict after a five-day trial was for the defendant. The only argument for reversal is that the trial judge should not have given a modified version of AMI 908, by which the jury was instructed that no person shall drive on any highway a vehicle which is in such an unsafe condition as to endanger any person. AMI Civil 2d, 908 (1974). It is contended that there was no substantial evidence to support a finding that the mechanical condition of Zajac’s pickup truck was a proximate cause of his death. We cannot sustain that contention. The only two eyewitnesses who described the accident were members of the train crew. The brakeman, who was sitting on the left in the lead engine, had the clearer view. At a distance of 300 feet he saw the pickup slowly approaching the crossing from the left. It crept up on the track and stalled or stopped right in the middle of the track. The emergency brakes were applied, but it was too late to stop the train, which was about a mile long. At first the driver of the truck was looking straight ahead, but a few seconds before the impact he looked at the train. The brakeman testified: “It looked like he was either downshifting — he took the lever and went up with it the last time I seen him.” The decedent, Tommy Zajac, had been about high-school age. One of his friends testified that Tommy had a problem with the gears in his truck. Occasionally the shifter would hang up when he was going into another gear. It didn’t happen much, but when it did Tommy had to stop and reach under the hood to unjam the linkage. When the trouble occurred, Tommy would try to wiggle the gear shift knob to get it into gear. This witness had seen the gears hang up a day or two before the accident. Tommy’s girlfriend, who said she and Tommy were planning to be married, was familiar with the gearshift problem. She said that Tommy bought a part for the problem and that he and his father fixed it on the day before the accident. She and Tommy then went for a ride and had no problems. They assumed it was fixed. On cross examination she admitted that in a deposition she had said that the truck was fixed “sometime during the two weeks before he got killed.” She explained that she just couldn’t remember then, but she thought back about it and remembered that it had been the day before the accident. It was for the jury to decide whether the gearshift defect contributed to the accident. According to the brakeman, young Zajac’s truck stalled on the track. In the last few seconds Zajac saw the approaching train and was working with the gearshift lever just before the impact. Upon all the testimony the jury could have found that the truck stalled on the track because the malfunctioning of the gearshift had not been repaired. It was accordingly proper for the court to give the instruction about which complaint is made. Affirmed. Purtle, J., not participating.

Jack Holt, Jr., Chief Justice. This case involves the issue of pretermitted children. The probate court found the reference in the testator’s will to “all of my heirs or other relatives” sufficient to mention the testator’s children as a class and exclude them from inheritance. It is from that judgment that this appeal is brought. Our jurisdiction is pursuant to Sup. Ct. R. 29(1)(c) and (p). We affirm. Charles Buford Young died testate on December 8, 1983, a resident of Florida. His will, executed on August 30, 1983, was admitted to probate in Florida. On August 6,1984, an authenticated copy of the will was admitted to probate in the Chick-asawba District of Mississippi County, Arkansas, where the decedent owned an interest in land and some residential property. The will devised and bequeathed all of the testator’s property to his brother, Benjamin K. Young, with the exception of a hand-carved pipe bequeathed to a friend. The testator was also survived by two children, the appellants; three grandchildren; and his mother. The testator was divorced from the mother of his children at the time of his death. The will did not mention either of the testator’s children by name. Appellants filed a petition on January 11,1985, alleging that they are pretermitted children under the will of Charles B. Young and are entitled to inherit the entire estate. A hearing was held on May 16, 1985 after which the trial court found the following language in the will sufficient mention of the appellants to exclude them from inheriting the entire estate as pretermitted children: I am mindful of the fact that I have willingly and intentionally omitted to provide for all of my heirs or other relatives not specifically mentioned herein. The pretermitted child statute, Ark. Stat. Ann. § 60-507(b) (Repl. 1971) provides: If at the time of the execution of a will there be a living child of the testator, or living child or issue of a deceased child of the testator, whom the testator shall omit to mention or provide for, either specifically or as a member of a class, the testator shall be deemed to have died intestate with respect to such child or issue, and such child or issue shall be entitled to recover from the devises in proportion to the amounts of their respective shares, that portion of the estate which he or they would have inherited had there been no will. The probate judge, in finding the language in the testator’s will sufficient mention of the appellants as members of a class, cited three Arkansas Supreme Court cases, Taylor v. Cammack, 209 Ark. 983, 193 S.W.2d 323 (1946); Powell v. Hayes, 176 Ark. 660, 3 S.W.2d 974 (1928); and Petty v. Chaney, Ex’x, 281 Ark. 72, 661 S.W.2d 373 (1983). In Powell v. Hayes, supra, the will in part read: “The balance of my property to my wife and heirs as law provides.” This court stated: [A] will in which the testator provides for all of his children as a class, without expressly naming them, is a sufficient mention of his children. . . . In its strict legal sense the word “heirs” signifies “those upon whom the law casts the inheritance of real estate.” But this construction will give way if there be upon the face of the instrument sufficient to show that it was to be applied to children . . . (citations omitted). The word “heirs” has been held to be susceptible of two interpretations; the one which is technical, and embraces the whole line of heirs; the other, not technical, but common, and is used to denote the heirs who may come under the designation of heirs at a particular time, and it is often used in common speech as synonymous with children . . . (citations omitted). Looking at the entire will and all the circumstances surrounding the testator, we think the word “heirs”, as used in the will, manifestly meant children. The word was not used to denote succession but to describe devises who were to take under the will. Again, in Taylor v. Cammack, supra, we found that a statement in the testator’s will appointing an executor with “full power to sell and dispose of it [his property] [if] in his (its) judgment it is necessary for the payment of debts, or to the advantage of the estate, or of the heirs,” was a sufficient reference to the testator’s children to avoid a pretermitted child problem. In so holding, this court found that since the testator had no heirs other than his three children, it is reasonable to assume that he used the word “heirs”, in the nontechnical sense and meant thereby his children. In Petty v. Chaney, Ex’x, supra, we found the appellant child was sufficiently provided for in the paragraph of the testator’s will creating a trust for the testator’s “descendants.” In reaching that decision we considered the will as a whole. Applying these guidelines to the will in question, we find that the phrase “my heirs” was a reference to the appellants, excluding them from inheritance as pretermitted children. In so holding we note that elsewhere in the will the appellant’s brother and sister-in-law were specifically mentioned. The only other people who could be considered heirs or relatives were the testator’s children and grandchildren and his mother. This court has previously recognized that the word “heirs” when used in common speech is synonymous with children. Powell, supra. Considering the will as a whole, as we are required to do, it is apparent that the testator was referring to his children as his heirs when he stated in his will that he had intentionally failed to provide for that class of people. His mother and grandchildren could well fall within the “other relatives” designation. The purpose of the pretermitted child statute is not to compel a testator to make a provision for his children, but to guard against testamentary thoughtlessness. Taylor, supra. We think the testator was mindful of the fact that he had children when he wrote his will. As to the other issues raised by the parties, the probate judge correctly applied Arkansas law in construing the will, Layman v. Hodnett, 205 Ark. 367, 168 S.W.2d 819 (1943), and we need not reach the question of the admissibility of extrinsic evidence since the will can be upheld based solely on the language used. Affirmed. Purtle, J., not participating.

Robert H. Dudley, Justice. Appellant, Michael Hallman, and Arthur Dale Taylor were jointly charged with the murder of Ivey Jones. Michael Hallman was found guilty of second degree murder while Arthur Dale Taylor and appellant were found guilty of first degree murder. They appeal separately. Opinions in all three cases are handed down this date. Appellant contends there was insufficient evidence to sustain his conviction. The argument is meritorious. We reverse and dismiss. In January of 1984, the Crawford County Sheriff’s office was notified that two hunters had found a corpse in a rural area of the county. Investigation showed the corpse to be that of Ivey Jones. An autopsy showed that the victim died from two causes, blunt trauma to the left side of the head and four stab wounds through the back which pierced the right lung and the aorta. Investigation led to appellant, Michael Hallman, and Arthur Dale Taylor. At trial, the in-custodial statements of each defendant were introduced into evidence after the names of the codefendants were deleted. See Bruton v. United States, 391 U.S. 123 (1968); Parker v. Randolph, 442 U.S. 62 (1979); and Gammel v. State, 259 Ark. 96, 531 S.W.2d 474 (1976). The inculpatory statements of Michael Hallman and Arthur Dale Taylor make no mention of appellant. Appellant gave an exculpatory statement in which he said he only saw Michael Hallman and Arthur Dale Taylor as they drove by his mother’s house. He said he then walked over to Taylor’s mobile home where a fire was burning outside. Regina McGrew testified that the three of them were together outside Taylor’s mobile home when Taylor burned his blood-soaked shirt in the fire. That is all of the evidence connecting appellant to the crime. The foregoing does not constitute substantial evidence of the guilt of appellant. The substantial evidence necessary to support a conviction must be of sufficient force that it will, with reasonable 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. Wilson v. State, 277 Ark. 43, 639 S.W.2d 45 (1982). Because no substantial evidence of the guilt of appellant was introduced, we reverse and dismiss. Purtle, J., not participating.

Robert Branch, Special Justice. We granted review of this case because the Court of Appeals was evenly divided on the main issue, Roberts-McNutt, Inc. v. Williams, 15 Ark. App. 240, 691 S.W.2d 887 (1985), and because it involves a matter of significant public interest. Michael J. Williams was granted workers’ compensation even though he falsely represented on his employment application that he had no previous injury. The pertinent facts are that Williams suffered a back injury on November 3, 1982, while employed by Western Waterproofing in Oklahoma. On January 17, 1983, he underwent back surgery and on April 4,1983, was released at his request with a rating of 20 percent disability to the body as a whole. On April 18, 1983, Williams applied for employment with the Appellant. On April 21, 1983, Williams filed a joint petition to settle his workers’ compensation claim in Oklahoma and he was paid $18,000.00 as compensation for that injury. On May 2 or May 3,1983, Williams began work for the Appellant and one day later he slipped and fell and sustained an injury which gives rise to this claim. On his employment application with the Appellant, he omitted any reference to his injury or compensation. Williams concedes these facts but claims that the president of the Appellant company told him to omit any reference to the injury because it would make his insurance go up. This case involves only an issue of witness credibility. Williams testified he called Raymond Roberts, the president of the Appellant company, and told him of the injury he had sustained while working for Western Waterproofing in Oklahoma and of his back surgery and that he was invited by Roberts to come in and make an application for employment. Freddy Carl Scott testified that he was present when Williams called Roberts and told Roberts that he was waiting to be cleared by his doctor before he could come to Arkansas for employment. Williams testified that when he filled out his application for work in Roberts’ presence, Roberts asked him how he felt and decided his pay would be less than the full pay scale because of Williams’ back condition. Williams testified that while filling out his employment application, he asked if he should include information about his back condition and Roberts replied he should not because it would make his “insurance go up”. Scott testified Roberts told Williams not to mention the back condition in the employment application for insurance reasons. Roberts denied Williams had told him of his back condition and denied telling Williams to falsify his employment application. Roberts testified his company was self-insured through a self-insuring fund and he only paid Williams $10.00 per hour because Williams was trying to take a shortcut to employment as a journeyman. The administrative law judge ruled in favor of the Claimant Williams. The Arkansas Workers’ Compensation Commission affirmed. We find there is substantial evidence to support the decision of the Workers’ Compensation Commission. Roberts testified he knew Williams and knew of his work with Western Waterproofing in Little Rock prior to going to Oklahoma. He contended, however, that Williams lied on his job application about his education level and he did not disclose his employment with Western Waterproofing in Oklahoma. Williams stated on his application that he worked for Western Waterproofing in Little Rock from 1978 until June 1, 1982. The application was dated April 18,1983. The application did not disclose any employment information for the period from June 1, 1982 to April 18, 1983. The Appellant asked the Administrative Law Judge and the Commission to believe that Roberts accepted this job application without knowing of the prior injury, without knowing of Williams’ employment with Western Waterproofing in Oklahoma, and without questioning where Williams had been and what he had been doing for the preceding ten months and 18 days. The issue is whether Williams and Scott were telling the truth or Roberts was telling the truth. The Commission chose to believe Williams and Scott. We defer to the decision of the Workers’ Compensation Commission on questions of witness credibility. May v. Crompton-Arkansas Mills Inc. & Liberty Mutual Insurance Co., 253 Ark. 1080, 490 S.W.2d 794 (1973); Warwick Electronics Inc. v. Devazier, 253 Ark. 1100, 490 S.W.2d 792 (1973); Dacus Casket Co. v. Hardy, 250 Ark. 886, 467 S.W.2d 713 (1971); Nationwide Warehouse Market v. Whisenant, 249 Ark. 604, 460 S.W.2d 90 (1970); Kivett v. Redmond Co., 234 Ark. 855, 355 S.W.2d 172 (1962). Affirmed. Purtle, J., not participating. Holt, C.J., George Rose Smith, J., and Hays, J., would reverse for the reasons given by Judge Corbin in the Court of Appeals.

Robert H. Dudley, Justice. On July 18, 1984, appellant, Bobby Joe Johnson, was charged with a felony. His bond was set at $100,000.00. Appellant contacted a local commercial bondsman, but he was unable to write a bond in excess of $25,000.00. The commercial bondsman referred appellant to the appellee, Robert Hicks, who agreed to post the bond for a fee of $6,800.00. Appellant paid the fee, and appellee posted the bond. Subsequently, on September 17, 1984, appellant, a felon, was arrested on the felony charge of being in possession of a weapon, a .357 magnum pistol, and for driving while intoxicated. While appellant was incarcerated on the new charges, appellee surrendered him on the original bond and asked to be exonerated and discharged from the bond. Appellant made a motion in the criminal case for a refund of the $6,800.00 premium. The motion was apparently oral as the only pleading contained in the record is the information. The trial court denied relief to appellant. We affirm. Appellant first argues that our holding in Troutt v. Langston and Robinson, 283 Ark. 220, 675 S.W.2d 625 (1984) requires the refund of the entire premium, as a matter of law. The argument is based upon a misunderstanding of the case and, in effect, asks us to hold that the execution of a bail bond constitutes an implied contract that the bondsman will keep the defendant at liberty until his case is called for trial, and breach of that implied contract entitles the defendant to a refund of the premium. We decline to so hold. The surety on a bail bond may, at his discretion, apprehend and surrender the defendant. Ark. Stat. Ann. § 43-716 (Repl. 1977). The surrender of the defendant may be either with or without cause. If the surrender is without cause, the contract for bond implies that the bondsman must return the premium. Troutt v. Langston and Robinson, supra. However, if the surrender is with cause, there is no implied contract to return the fee. When a bondsman has reasonable cause to believe that a defendant has committed a felony while released on bond, he has cause to surrender the defendant. Cf. A.R.Cr.P. Rule 9.6. (Rule 9.6 provides for revocation of release by a court under similar circumstances.) The defendant in this case, appellant, was arrested for committing a felony while released on bond. Therefore, it is not necessary, as a matter of implied contract, for the premium to be returned. Appellant next argues that the bond contract in this case did not, in fact, provide that he would be liable for the premium if the bondsman surrendered him with cause. The argument is without merit. There was substantial evidence from which the trial court could find such liability on the part of appellant. The application for bail bond, which appellant executed, provides in part: I further agree and understand that I will not leave the jurisdiction of the court without the permission of the bondsman; not commit any further offenses that will subject me to any subsequent arrest by any authority; nor fail to pay any premium due; and I will notify promptly my bondsman of any change of address and carefully comply with all specific instructions given me by the bondsman; FURTHER, I understand and agree that failure to comply with any of the herein contained conditions shall be cause for my immediate surrender without any liability for the return of any premium. (Emphasis added.) In addition, the bondsman testified that the appellant knew the amount of the premium and understood from their discussion that if appellant violated the law the bond would be revoked. We do not decide the remaining point on appeal. The record reflects that no written pleading, other than the information charging the appellant, was filed. The record, which is composed of the criminal case file and the transcript of this hearing, does not contain any agreement between the attorneys and the trial court about the issues to be tried. The transcript contains the following caption: “Hearing on Motion for Return of Bond Premium before Honorable John M. Graves, Judge, October 4, 1984; Bobby Joe Johnson, plaintiff, and Robert Hicks, respondent.” At the hearing, appellant testified that he paid the $6,800.00 premium in cash, but that appellee claimed the cash amounted only to $5,800.00, which forced appellant to pay an extra $1,000.00. The ensuing colloquy established that appellant’s attorney only learned of the $1,000.00 claim by appellant on the day before the hearing. He did not notify appellee’s attorney. Appellee’s attorney claimed surprise and gave the name of a witness he would have called if he had known the alleged $1,000.00 overcharge was to be an issue. He then moved for a continuance. The court sustained the objection stating that he did not have jurisdiction over the $1,000.00 claim. Appellant’s attorney responded, “Very Well” and “Okay.” In this Court, appellant seeks to reverse the trial court on the complex issue of whether a criminal court has jurisdiction, to the exclusion of a civil court with a jury, to determine whether there was an overcharge in premium by a third party bondsman. We decline to decide the issue. We will not decide an issue if there were no written pleadings before the trial court; neither the opposing side nor the court was in any manner apprised of an issue; the point was only superficially mentioned at the hearing; and counsel raising the issue then assents to the ruling. To rule otherwise would allow an attorney to lay a minefield of traps for appeal concerning points which were not anticipated and for which preparation could not be made. Affirmed. Purtle, J., not participating.

Darrell Hickman, Justice. James H. Williams, Jr., was convicted of the capital felony murder of Earl Johnson of Jonesboro, Arkansas, and sentenced to life imprisonment without parole. On appeal he makes four procedural arguments which we find meritless. Williams first argues that the statement made by him at the police station was inadmissible at trial because it was made in the absence of counsel, a violation of the Sixth Amendment to the United States Constitution. A pretrial hearing was held and the trial court ruled that the statement was voluntarily made and admissible; however, the state did not introduce the statement; the defense did. The record reflects how this occurred: Defense Counsel: Do you want me to go ahead? The defense is offering or intends to offer the confession taken from the defendant, through Mr. Dickie Howell at the Craighead County Sheriff’s office. The Court: The State, having objected to the procedure outlined by the defense, the matter was brought to the Court’s attention at a bench conference. The Court admits it being somewhat perplexed by the offer of proof in this fashion, and feels that perhaps a hearsay objection would be proper, inasmuch as the State could foreseeably be precluded from cross-examining the defendant Williams. However, I can see no other basis for excluding otherwise relevant evidence, and therefore will allow the defendant to play the tape through the officer taking the statement or other officers involved . . . Defense Counsel: All right. Officer Howell, on May the 30th, 1983, did you take a statement from Mr. James Williams? Yes, sir, I did. Officer Howell: All right. And did you record that statement? Defense Counsel: Yes, sir, I did. Officer Howell: Your Honor, at this time, I would like to play it before the jury. Defense Counsel: Just a minute. The Court: (Bench conference; out of hearing of the jury.) For the record, the defense attorney states he is waiving any objection, based on voluntariness of this confession. Defense Counsel: The previous hearing, having been had before the Court where the question of voluntariness had been raised, the Court having ruled the confession to be voluntary. Now Mr. Lyons is attempting to introduce the statement which the Court will allow. As indicated for the record, the previous motion has been withdrawn, and he consents to it and agrees that it was voluntarily made. You may proceed .... The Court: We ordered a rebriefing on this issue to be certain that any objections to the statement were waived. The record reflects there was a waiver. Williams waived any objections to the use of the statement by placing it in evidence. Spencer v. State, 285 Ark. 339, 686 S.W.2d 436 (1985); Scantling v. State, 271 Ark. 678, 609 S.W.2d 925 (1981). The reason for introducing the statement by the defense was obviously to exonerate Williams since his statement blamed the murder on Bobby Tippett, the codefendant. The defense attorney stated in his closing argument to the jury that the reason the state did not use the statement was because it was true — Tippett killed Johnson. The second argument is the death qualified jury issue which we have repeatedly rejected. Hendrickson v. State, 285 Ark. 462, 688 S.W.2d 295 (1985). Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983). In conjunction with that argument, Williams asserts that the trial court applied the wrong standard in releasing certain jurors who had scruples against the death penalty. Williams contends the trial court should have inquired if these jurors could set aside their convictions in determining the guilt or innocence of Williams before a sentence would be considered. If so, Williams argues, the jurors should have been seated. In Wainwright v. Witt, 105 S.Ct. 844 (1985), the United States Supreme Court clarified the standard to be used, which was pronounced in Witherspoon v. Illinois, 391 U.S. 510 (1968). The proper standard is whether the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oath. Since Arkansas recognizes the death penalty, jurors in a capital murder case must be able to consider imposing a death sentence if they are to perform their function as jurors. The trial court correctly decided that those excused jurors could not perform their duties, because they could not consider imposing a death sentence. Williams finally argues that the trial court erred in refusing to order Bobby Tippett, the codefendant, to answer questions at the deposition. Williams requested the taking of Tippett’s deposition. The prosecutor did not object to the taking of the deposition, and the trial court granted the motion, provided Tippett and his attorney agreed. At the deposition, Tippett refused to answer any questions, invoking the Fifth Amendment. Williams then requested the trial court to order Tippett to answer the deposition questions. The trial court did not rule on the motion, because he had taken Tippett’s guilty plea under advisement. Tippett had entered plea negotiations with the prosecutor. As part of the negotiations, the prosecutor agreed that none of Tippett’s testimony at Williams’ trial would be used against him. When the motion for the pretrial deposition was considered, the prosecutor agreed that any statement made by Tippett during the deposition would not be used against him. However, Tippett still refused to answer the deposition questions. Williams argues that the trial court erred by taking Tippett’s plea under advisement instead of sentencing him at that time. Williams argues that the trial court was attempting to insure Tippett’s testimony at his trial which would in effect undermine the discovery deposition granted by the court. Williams claims the deposition was necessary because Tippett had given three different statements to the police and Williams needed to know which statement would be the basis of Tippett’s testimony at trial. However, the prosecutor at the pretrial hearing informed Williams which statement would be used at trial. Since Williams already knew which statements would be used at trial, Williams was not prejudiced at trial by Tippett’s refusal to answer the deposition questions and the trial court’s failure to compel Tippett to do so. We do not reverse for nonprejudicial error. Berna v. State, 282 Ark. 563, 670 S.W.2d 435 (1984). Under Ark. Stat. Ann. § 43-2725 (Repl. 1977), as put into effect by our Rule 11 (f), we consider all objections brought to our attention in the abstracts and briefs in appeals from a sentence of life imprisonment or death. In this case we find no prejudicial error in the points argued or in other objections abstracted for review. Affirmed. Purtle, J., not participating.

David Newbern, Justice. The sole question presented here is whether an earlier misdemeanor conviction of the appellant could be mentioned by the state in cross examination of a character witness presented by the appellant. We hold that it may, and thus we affirm. The appellant was convicted of murder in the first degree for shooting and killing Tony Vellman. The appellant called Allen Helms, a farmer and part owner of a cotton gin, who testified he had been the appellant’s employer and had always regarded the appellant as a truthful and honest employee. The attorneys approached the bench and discussed whether the witness could be questioned with respect to an earlier misdemeanor conviction of the appellant. The court allowed the question. Mr. Helms testified that knowledge of the appellant’s misdemeanor theft conviction did not change his opinion. The court then gave a “limiting instruction” to the jury. The essence of the instruction was that the jury could consider the cross examination including reference to the conviction as evidence going only to the extent of the witness’ knowledge of the appellant and the weight to be given to his opinion of the appellant’s character. Evidence of the commission of a crime the punishment for which is less than one year imprisonment may not be used for general impeachment of a witness unless it involves “dishonesty or false statement.” Uniform Rules of Evidence 609(a). However, if the accused has presented a witness to testify as to his good character, cross examination may inquire “into relevant specific instances of conduct.” Uniform Rules of Evidence 405(a). The rule places no limit, other than relevancy, on the kind of instances of misconduct with respect to which cross examination may occur. The appellant recognizes that rule 609(a) does not apply here, as the reference to the prior conviction was not made in an attempt to impeach either the testimony of the appellant or that of the witness on the stand. His argument, rather, is that evidence of the misdemeanor conviction which could not have been used in cross examining him has nevertheless been unfairly allowed to come in through another means. Rule 609(a) protects an accused person from cross examination with respect to minor crimes. The advisory committee’s note pertaining to the federal rule of which our rule is an exact copy pointed out this limitation was in accord with the great weight of authority which permitted impeachment on the basis of a criminal record only by reference to felonies or specific crimes involving dishonesty or false statement regardless of the punishment. 56 F.R.D. 183 at 270. That limitation has perhaps been deemed appropriate in that it protects an accused from impeachment based on, for example, juvenile offenses not in any way probative of his veracity. The policies behind rule 405(a) are, however, distinguishable from those underlying rule 609(a). The purpose of the cross examination of a character witness with respect to a prior offense is to ascertain the witness’ knowledge of facts which should have some bearing on the accused’s reputation. If the witness does not know that an accused was previously convicted of a crime, the witness’ credibility suffers. If he knows it but then disregards it in forming his opinion of the accused, that may legitimately go to the weight to be given the opinion of the witness. The limiting instruction, such as the one given in this case, assists the jury in placing the testimony in its proper light. United States v. Gosser, 339 F.2d 102 (6th Cir. 1964); State v. Samson, 388 A.2d 60 (Me. 1978); Annot. 47 ALR 2d 1258, § 14 (1956), and later case service (Supp. 1985). See also Michelson v. U. S., 335 U.S. 469 (1948); State v. Johnson, 389 So. 2d 372 (La. 1980). Cf. State v. Johnson, 41 N.C. App. 423, 255 S.E.2d 275 (1979); State v. Casados, 193 Neb. 28, 225 N.W.2d 267 (1975). We are not persuaded by the appellant’s argument which when extended would contend that, analogizing to rule 609(a), we should permit a character witness to be cross examined about a prior felony conviction of an accused but not as to a prior misdemeanor conviction. By presenting a character witness an accused opens the door which would otherwise be closed. If he wants us to know what his reputation is, we must be able to determine the witness’ awareness of the relevant facts. Had the authors of rule 405(a) or our General Assembly by adopting the rule, see Ark. Stat. Ann. § 28-1001 (Repl. 1979), intended to limit it as they did rule 609(a), they could easily have done so. Affirmed. Purtle, J., not participating.

Jack Holt, Jr., Chief Justice. The teaching contract of appellee, Imogene Strain, was not renewed for the 1982-1983 school year by the Western Grove School District Board of Directors. Mrs. Strain appealed her nonrenewal to the Newton County Circuit Court where the board’s decision was affirmed. Subsequently, Mrs. Strain, appealed to the Arkansas Court of Appeals which reversed the circuit court in an unpublished opinion and remanded the case for consideration of damages and mitigation. After a hearing on remand, the circuit court awarded Mrs. Strain back pay for the two years she was out of work, less her earnings in mitigation. It is from that decision on remand that the school district brings this appeal. Our jurisdiction is pursuant to Sup. Ct. R. 29(l)(c). The district first contends that Mrs. Strain was only entitled to an award of back pay for one year and that the court, therefore, erred in basing the award on the two-year period between Mrs. Strain’s nonrenewal and her reinstatement. Second, the appellant argues that Mrs. Strain did not make reasonable attempts to mitigate her damages. We find no merit to either contention and affirm the circuit court. Appellant relies on this court’s decision in Marion County Rural School Dist. No. 1 v. Rastle, 265 Ark. 33, 576 S.W.2d 502 (1979). In that case the teacher had a one-year teaching contract for the 1974-1975 school year. Notice of nonrenewal was not properly given to the teacher as provided by the statute in effect at that time, Ark. Stat. Ann. § 80-1304(b) (Supp. 1977). We affirmed the trial court’s holding that the teaching contract was extended by operation of law for the succeeding year, 1975-1976, and the district was liable to Rastle for that year’s salary. Rastle argued, however, that he should also be awarded a salary for the 1976-1977 school year since he never received statutory notice of nonrenewal and the district’s contractual liability would there fore continue until he received such notice. In rejecting that argument, we held that § 80-1304(b), which allowed for nonre-newal without cause by simply giving the teacher notice, did not create an expectation of continued employment and the required notice only goes to the succeeding school year. Reliance upon Rastle is misplaced, since the statutory law governing teaching contracts had been changed by the legislature prior to the dispute between Mrs. Strain and the school district. The Teacher Fair Dismissal Act of 1979, Ark. Stat. Ann. §§ 80-1264—80-1264.10 (Repl. 1980), was in effect and it provided that before a school district could nonrenew a nonprobationary teacher, such as Mrs. Strain, the district must give notice, state grounds for the action, hold a hearing if requested, and nonrenew for a cause which is not arbitrary, capricious, or discriminatory. By statute, Mrs. Strain’s contract with the school district continues unless nonrenewed for cause. Once she was removed from her job by the school district without cause, her contract was in abeyance during the pendency of the lawsuit. Since the lawsuit resulted in her reinstatement, Mrs. Strain is entitled to be compensated for the period she was unemployed due to the actions of the school district. This holding is in accord with the general rule of law that the measure of damages in a breach of employment contract case is the wages which were to be paid less any sum earned in mitigation. 68 Am. Jur. 2d Schools § 211 p. 534 (1973). This court has recognized that a teacher is entitled to damages equivalent to the amount of actual loss sustained as measured by the wages that would have been paid if not for the wrongful discharge, less any mitigation. Russellville Special School Dist. v. Tinsley, 156 Ark. 283, 245 S.W. 831 (1922); Annot., 22 A.L.R.3d 1047, 1054 § 3[b]. Accordingly, Mrs. Strain is entitled to compensation for the two years of salary she lost between her nonrenewal and her reinstatement. As to the second point raised by appellant, Mrs. Strain offered ample proof of her efforts to mitigate damages at a hearing held on that specific question. Appellant contends, however, that despite the fact that Mrs. Strain’s nonrenewal was the result of an alleged dispute with the superintendent over her philosophy of teaching, she included with her applications to other school districts her “statement of philosophy of education.” Second, appellant points out that Mrs. Strain sent a letter with her job applications which contained two misspellings and one word incorrectly used. Her efforts to find other employment were not reasonably diligent, according to appellant. The school district has the burden of proving that Mrs. Strain could have obtained other employment in mitigation. Newton v. Calhoun County School Dist., 232 Ark. 943, 341 S.W.2d 30 (1960); Arkansas State Hwy. Comm’n v. Frierson, 269 Ark. 81, 598 S.W.2d 420 (1980). A party must use reasonable care, effort or expenditure in mitigating damages, but the determination of whether one has acted reasonably is a question of fact. Id. Such fact findings, when made by a judge, are not reversed unless clearly erroneous. Ark. R. Civ. P. 52(a). The district also had the burden of proving the amount of damage that might have been avoided by proper mitigation. Harris Const. Co. et al. v. Powers, 262 Ark. 96, 554 S.W.2d 332 (1977). Here, the district offered no evidence that a school district refused to hire Mrs. Strain because of the letter or the statement of philosophy. Nor did the district offer evidence of the extent to which Mrs. Strain’s actions contributed to her inability to mitigate her damages. The district failed to meet its burden of proof. Affirmed. Purtle, J., not participating.

David Newbern, Justice. This is a property tax case. The appellees purchased real property from a school district. Because it belonged to the school district, the property was exempt from ad valorem taxation at the time of the purchase. Ark. Const, art. 16, § 5(b). The appellants sought to assess and tax the property to the appellees from the date they purchased it. The appellees objected to assessment being made prior to the year following their purchase of the property because Ark. Stat. Ann. § 84-436 (Repl. 1980), in part, states: All lands that shall have been purchased from owners the property of whom or which was by law exempt;. . . subsequent to January 1st of any year shall be subject to assessment and taxation for the year immediately following such purchase .... The appellants claim the statute violates Ark. Const, art. 16, § 6, which says: “All laws exempting property from taxation other than as provided in this Constitution shall be void.” We agree with the chancellor that the statute requiring assessment and taxation at the beginning of the year following the purchase is an administrative directive which need not be construed as an exemption of property from taxation in violation of the constitution. While we understand the appellants’ argument that the statute creates an exemption, we find it equally reasonable to construe the statute as one providing, as an administrative directive, a time for assessment and taxation of property rather than a declaration of immunity or exemption from taxation. Every act of the Arkansas General Assembly carries a strong presumption of constitutionality. Pogue v. Cooper, 284 Ark. 105, 679 S.W.2d 207 (1984); Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983). If it is possible for us to construe a statute so as to meet the test of constitutionality, we will do so. Phillips v. Giddings, 278 Ark. 368, 646 S.W.2d 1 (1983); Heber Springs School District v. West Side School District, 269 Ark. 148, 599 S.W.2d 371 (1980); Davis v. Cox, 268 Ark. 78, 593 S.W.2d 180 (1980). Affirmed. Purtle, J., not participating.

Steel Hays, Justice. Appellant was charged with manslaughter for the July 2, 1983 shooting of her husband. She was convicted and sentenced to ten years imprisonment and fined $10,000. On appeal appellant’s primary argument revolves around a hypnotic session conducted prior to the trial. Appellant could not remember everything about the shooting and without consulting the court nor informing the prosecutor, her attorney hired a psychiatrist to use hypnosis to induce recollection. Before hypnosis was begun, the psychiatrist, Dr. Bettye Back, interviewed appellant for an hour. Included in that interview was appellant’s recollection of the shooting prior to hypnosis. No video or sound recording was made of the pre-hypnotic session, but Dr. Back made handwritten notes of the session. The trial court ruled testimony of matters recalled by appellant due to hypnosis inadmissible because of its unreliability and because of the effect of hypnosis on cross-examination. Appellant was allowed to testify about things she remembered prior to being subjected to hypnosis, though testimony resulting from post-hypnotic suggestion was excluded. We believe the trial court’s ruling was correct. I HYPNOTICALLY REFRESHED TESTIMONY Appellant makes two arguments relating to the court’s ruling: the hypnotically refreshed testimony should have been admitted, and in the alternative, even assuming that such testimony is inadmissible, the trial court was unduly restrictive of appellant’s testimony. Divergence of Opinion on Admissibility Hypnotically refreshed testimony has resulted in a divergence of opinion as to its proper treatment in the courtroom. Most courts agree there is some inherent unreliability in hypnotically refreshed testimony, but disagree as to how that affects admissibility. Some jurisdictions generally admit it, and do not view hypnotism as a matter of scientific procedure, but merely a matter of credibility to be weighed by the trier of fact. See Clark v. State, 379 So.2d 372 (Fla. Dist. Ct. App. 1979); State v. Greer, 609 S.W.2d 423 (Mo. App. 1980); State v. McQueen, 295 N.C. 96, 244 S.E.2d 414 (1978). A second group of cases recognizes dangers in such testimony and allows it only if certain safeguards have been followed to minimize those dangers. See State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981); State v. Beachum, 97 N.M. 682, 643 P.2d 246 (1981); State v. Long, 32 Wash. App. 732, 649 P.2d 845 (1982); State v. Armstrong, 110 Wis. 2d 555, 329 N.W.2d 386 (1983). A third group of cases has found hypnotically refreshed testimony so unreliable the testimony is held inadmissible per se. See People v. Shirley, 31 Cal.3d 18, 181 Cal.Rptr. 243, 641 P.2d 775 (1982); Collins v. Superior Court for the County of Maricopa, 132 Ariz. 180, 644 P.2d 1266 (1982);State v. Collins, 52 Md. App. 186, 447 A.2d 1272 (1982); State v. Mack, 292 N.W.2d 764 (Minn. 1980); People v. Hughes, 59 N.Y.2d 523, 466 N.Y.S.2d 255 (1983); Commonwealth v. Kater, 388 Mass. 519, 447 N.E.2d 1190 (1983). (For a more comprehensive list of citations on the alignment of jurisdictions, see People v. Shirley, supra; Collins v. Sup. Ct., supra; State v. Collins, supra; People v. Guerra, 37 Cal.3d 385, 208 Cal. Rptr. 162, 690 P.2d 635 (1984).) Current Trend Toward Exclusion While it was said in State v. Hurd, supra, that a majority of courts have held hypnotically induced testimony admissible, the cases cited for that conclusion are from the previous decade. (Hurd, at p. 91). The more recent trend is toward exclusion of such testimony. McCormick on Evidence § 206 (1984 3d ed.); People v. Shirley, supra; State v. Atwood, 39 Conn. Sup. 273, 479 A.2d 258 (1984). Collins v. Sup. Ct., supra. Typical of this trend is Maryland, which in 1968 permitted the testimony, treating the issue as one of weight rather than admissibility. Harding v. State, 5 Md. App. 230, 246 A.2d 302 (1968). Harding was the leading opinion on this point, yet in 1982 Maryland reversed its position and held that a witness who has been hypnotized may not testify to induced recollections. Polk v. State, 48 Md. App. 382, 427 A.2d 1041 (1981); State v. Collins, supra. McCormick notes that even in those jurisdictions that previously held post-hypnotic testimony generally admissible, there is a trend toward insisting that rigorous safeguards be observed before the hypnotically refreshed memories are admissible, and “[t]he more prevalent view is that testimony about the posthypnotic memories is not admissible.” McCormick, supra at 623. Courts adopting a rule of exclusion often rely on the test announced in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), that an expert witness-“may not testify on the basis of scientific methodology unless the principles on which he relies have achieved general acceptance within the scientific community.” Some critics contend that Frye is too strict and will exclude helpful and probative evidence. McCormick, supra § 203; Latin and White, Remote Sensory Evidence and Environmental Law, 64 Cal. L. Rev. 1300 (1976). We do not have to resolve that issue in this case, as we would find the hypnotically refreshed testimony inadmissible by either the Frye test, or some form of it, or by traditional evidentiary concepts. Unif. R. Evid. 403. To this same effect see McCormick, supra at 633. Expert Opinion While hypnosis may have gained recognition as an aid to therapy, it has not gained general acceptance as a means of ascertaining truth in the field of forensic law. Cases comprising the recent trend toward exclusion of hypnotically refreshed testimony have examined extensively the expert opinions in this field and have concluded that it is inherently unreliable and without sufficient acceptance to allow it in the courtroom. See, People v. Shirley, supra; Collins v. Sup. Ct., supra; Commonwealth v. Kater, supra; State v. Collins, supra; People v. Quintanar, 659 P.2d 710 (Colo. App. 1982); People v. Gonzales, 415 Mich. 615, 329 N.W.2d 743 (1982); People v. Hughes, supra; State v. Peoples, 311 N.C. 515, 319 S.E.2d 177 (1984); Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981); Peterson v. State, 448 N.E.2d 673 (Ind. 1983); Robinson v. State, 677 P.2d 1980 (Okla. Cr. App. 1984); State v. Mack, supra; State v. Atwood, 3 Conn. Sup. 273, 479 A.2d 258 (1984). Dr. Bernard L. Diamond, Professor of Clinical Psychiatry, University of California at Berkeley, in his article, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, 68 Cal. Law Review 313 (1980), states: I believe that once a potential witness has been hypnotized for the purpose of enhancing memory his recollections have been so contaminated that he is rendered effectively incompetent to testify. Hypnotized persons, being extremely suggestible, graft onto their memories fantasies or suggestions deliberately or unwittingly communicated by the hypnotist. After hypnosis the subject cannot differentiate between a true recollection and a fantasy or a suggested detail. Neither can any expert or the trier of fact. This risk is so great, in my view, that the use of hypnosis by police on a potential witness is tantamount to the destruction or fabrication of evidence. Recently, some courts have shown a healthy suspicion of the veracity of this sort of testimony. Yet even under stringent safeguards, including presentation to the trier of fact of the fullest possible information on the effects of hypnosis, the trier will not be able to sort out reality from witness fantasy and weigh this testimony properly. People v. Shirley, supra, one of the leading cases for the rejection of hypnotically refreshed testimony, was recently reviewed in People v. Guerra, supra. The appellant in Guerra challenged the findings of Shirley as not being in step with recent developments in hypnosis in the scientific community. The California Supreme Court reviewed the studies and authorities since Shirley and found the experts even more cautious on the use of hypnosis in the courtroom. One of the more significant studies cited in Guerra is that of Dr. Martin T. Orne (Orne, et al., Hypnotically Induced Testimony, In Eyewitness Testimony: Psychological Perspectives, Wells & Loftus, edits. 1984). Orne is widely cited on this issue, and it was his guidelines for the use of hypnotic testimony that were adopted by the New Jersey court in Hurd v. State, supra. Guerra points out Orne’s current position; After discussing Shirley and the decisions that preceded and followed it, the authors agree that “The present state of scientific knowledge is consistent with the rules of a number of state supreme courts that memories retrieved through hypnosis are sufficiently unreliable that their use is precluded as eyewitness testimony in criminal trials. . . There is no way, however, by which anyone (including an expert with extensive experience in hypnosis) can for any particular piece of information obtained in hypnosis determine whether it is an actual memory or a confabulation. For these reasons, hypnotically induced testimony is not reliable and ought not be permitted to form the basis of testimony in court.” The dangers of hypnosis in memory retrieval are summed up in the Guerra opinion: the subject’s capacity to judge the reality of his memories is impaired; he is apt to recall “memories” that never existed, yet be convinced those memories are real; he will produce on demand a recollection of an event which may be a compound of actual facts, irrelevant matter and highly plausible “confabulations”; hypnosis artificially increases the subject’s confidence in both his true and his false memories and may enhance his credibility as a witness due to an attendant ability to increase dramatically the amount of detail, or the emotion with which those details are reported, though they may be simply “artifacts of the hypnotic process.” Too, there is the likelihood that juries will place greater emphasis on testimony produced by hypnosis. See Collins v. Sup. Ct., supra. Courts rejecting hypnotically refreshed testimony have been equally concerned with the effects on cross-examination, where the difficulties in memory retrieval and fabrication are compounded. The conviction on the part of the subject that he or she is stating the truth affects the truth finding process traditionally tested by cross-examination. The concern in the area of post-hypnotic testimony is that post-hypnotic memory may be different than pre-hypnotic memory. This memory alteration may result from purposeful or unwitting cues given by the hypnotist, the phenomenon of confabulation, and the need for the subject to achieve some sense of certainty within his or her own mind. The basic problem is that if a witness sincerely believes that what he or she is relating is the truth they become resistant to cross-examination and immune to effective impeachment to ascertain the truth. Collins v. Sup. Ct., supra. Much more could be said on the subject of hypnotically induced recollection, but we are satisfied from the more recent cases and the views of experts, that the dangers of admitting this kind of testimony outweigh whatever probative value it may have. Conditional Admissibility — the Hurd Guidelines Appellant urges that if we do not allow hypnotically refreshed testimony unconditionally, we should adopt the guidelines of State v. Hurd, supra. We note that appellant has not fully complied with those guidelines, but we are not inclined to follow Hurd in any case. The cases which have rejected Hurd have noted that some of the dangers of hypnotically induced testimony are not eliminated by the Hurd guidelines and others are not even addressed. See People v. Shirley, supra, Collins v. Sup. Ct., supra. Of equal importance, to adopt the guidelines would further burden the pretrial process with no off-setting benefit: the guidelines require that the opposing party be notified of the intent to use hypnosis and be furnished a recording of any sessions; only a psychologist or psychiatrist experienced in hypnosis, and independent of either the state or the defense, may be used; all sessions must be recorded and the trial court in a pretrial or chambers hearing must decide a number of issues determinative of whether the induced testimony should be received, such as the presence of cues or suggestions by the hypnotist. The burden of proof is by clear and convincing evidence. In light of the questionable probative value of such proof and the risks inherent in the means by which it is retrieved, we think it would be a serious mistake to further encumber the pretrial process with the steps outlined in Hurd. We agree with the comment in People v. Shirley, supra: On the other hand, it takes little prescience to foresee that these and related issues would provide a fertile new field for litigation. There would first be elaborate demands for discovery, parades of expert witnesses, and special pretrial hearings, all with concomitant delays and expense. Among the questions our trial courts would then be expected to answer are scientific issues so subtle as to confound the experts. Their resolution would in turn generate a panoply of new claims that could be raised on appeal, including difficult questions of compliance with the “clear and convincing” standard of proof. And because the hypnotized subject would frequently be the victim, the eyewitness, or a similar source of crucial testimony against the defendant, any errors in ruling on the admissibility of such testimony could easily jeopardize otherwise unimpeachable judgments of conviction. In our opinion, the game is not worth the candle. Appellant’s Testimony Restricted We turn to appellant’s argument that the trial court’s limitations on her testimony were too restrictive. Courts that decline to permit hypnotically refreshed testimony are often faced with the difficulty of dealing with a witness who has already undergone hypnosis. The concern focuses on determining what the witness could remember prior to hypnosis and insuring that the opposing party not be deprived of the opportunity for effective cross-examination because of the influence of hypnosis. Collins v. Sup. Ct., supra. The likelihood of contamination was deemed so pronounced in People v. Shirley, supra, that the court ruled a previously hypnotized witness was wholly incompetent to testify on matters dealt with while under hypnosis. However, the general response has been to permit the testimony of those recollections held prior to hypnosis, and on topics unrelated to those covered by hypnosis. To ascertain just what those memories are and to render that testimony admissible, the courts require verification by way of a detailed record by the hypnotist of the pre-hypnotic session. A preferred method is video or sound recording, Collins v. Sup. Ct., supra, and some courts have suggested the Hurd guidelines be followed when pertinent to a particular case, People v. Hughes, supra; Collins v. Sup. Ct., supra. The Hurd guidelines, or something similar, are proposed as there is still a danger that the hypnosis could be so suggestive as to affect the pre-hypnotic memory as well. Once it has been shown by clear and convincing evidence that testimony of pre-hypnotic recollections is reliable, a subject may testify, but only to those memories demonstrably shown to be a product of the memory prior to hypnosis. The burden of proving the reliability is on the proponent of the testimony. Commonwealth v. Kater, supra, People v. Shirley, supra, Collins v. Sup. Ct., supra, People v. Hughes, supra, State v. Atwood, supra. The trial court in this case chose the course of excluding testimony induced by hypnosis and admitting testimony of the appellant based on pre-hypnotic recollection. The difficulty was determining what that recollection was, based only on a record from the pre-hypnotic session with Dr. Back, a record admittedly incomplete. In this situation the trial court limited the appellant to what she could recall without the benefit of hypnosis, as evidenced by Dr. Back’s notes and enlarged by Dr. Back’s memory of her discussions with appellant before she was placed in a hypnotic state. Appellant argues the court misapplied the rule employed by courts where hypnotically induced testimony is inadmissible and was too restrictive. Appellant, however, never demonstrated how the rule was violated. The rule simply limits the hypnotized subject’s testimony to those matters demonstrably recalled prior to testimony. Any other testimony on the topic runs all the risks discussed earlier in hypnotically refreshed memories. Here, the court was in a difficult position as the defense supplied only partial notes of the pre-hypnotic session. Nevertheless, the appellant was allowed to testify to those items referred to in the notes and given considerable latitude in explaining them in her own words. The trial court also allowed testimony on matters Dr. Back had previously testified were covered in the pre-hypnotic session. The burden was on appellant to establish a reliable record of the testimony. She cannot now claim error because the court restricted her to the record she offered. Dr. Back testified that during the hypnotic session she took appellant back to her childhood and brought her forward to the shooting incident. Under these circumstances, in order to avoid testimony on topics covered in the sessions that were not previously preserved, the trial court could have limited appellant entirely to the notes and testimony of Dr. Back. However, to give appellant as much latitude as possible, the trial court applied that order only to the day of the shooting. Appellant complains that ruling was too restrictive and should have been limited to the explanation of the shooting incident itself. We find no support for this argument. Appellant does not deny that other events of the day were covered in the sessions, nor that they were relevant, but maintains the primary purpose of the session was to find out how the gun went off. While this may be so, the record reveals that the time covered in the sessions included the day of the shooting and, if anything, the ruling was generous. As noted in our discussion of appellant’s next point, the most significant events of that day were included in Dr. Back’s notes and appellant was able to testify to those matters. Appellant suggests the better method of determining her pre-hypnotic memory would be her own recollection, and not the notes of Dr. Back. Appellant cites no authority and we think it would be circumventing the very reasons for excluding hypnotically refreshed memory to permit the witness to decide what was remembered naturally and what was induced by hypnosis. A similar suggestion was made in Shirley, to which the court responded: [I]t is the consensus of informed scientific opinion today that in no case can a person previously hypnotized to improve his recollection reliably determine whether any unverified item of his testimony originates in his own memory or is instead a confusion or confabulation induced by the hypnotic experience. It would fly in the face of that consensus to allow a witness to be the judge of which portions of his testimony were actually produced by hypnosis. II CONSTITUTIONAL RIGHT TO TESTIFY Appellant maintains the exclusion rule of hypnotically refreshed testimony should not be applied to defendants because it violates their constitutional right to testify in their own behalf. Of course, a defendant’s right to testify is fundamental, but even that right is not without limits. A defendant with language difficulties, for example, may not eschew diligence and wait until the morning of trial to seek the assistance of an interpreter. Figeroa v. State, 244 Ark. 457, 425 S.W.2d 516 (1968). Even defendants are subject to the rules of procedure and evidence, such as hearsay, or other instances of evidentiary exclusion, e.g. evidence that is prejudicial, confusing, misleading, cumulative or time consuming. In Greenfield v. Robinson, 413 F. Supp. 1113 (1976), the same argument was made by a defendant who had no recollection of the crime, a murder. He argued that hypnotic testimony was the only evidence he could offer in his defense, that it would be a violation of his constitutional rights to deny him the right to testify, citing Chambers v. Mississippi, 410 U.S. 284 (1973). The cases are easily distinguishable, as the Greenfield court found. Chambers primarily found a hearsay exception for evidence offered by the defense because of reliability. The Greenfield court pointed out it was excluding the hypnotically induced testimony for the very reason that it was unreliable, after reviewing expert opinion on the issue. The court went on to say: This court knows of no rule that requires a judge to accept evidence of uncertain value to go to a defense that is otherwise completely uncorroborated. The mere fact that a crime has no eyewitnesses or direct evidence does not warrant a court to accept evidence that may be able to tell the trier of fact something about the crime, but may be of dubious quality. As a constitutional principle then this court simply finds that petitioner’s due process guarantees were not abrogated by the trial court’s refusal to permit the defendant to relate his story under hypnosis. Greenfield at 1120-21. In State v. Atwood, supra, a defendant charged with the murder of his wife had no recollection of the event and made the identical argument. The Atwood court had not previously considered the hypnosis problem and made a finding on that issue first, aligning itself with those jurisdictions which exclude hypnotically refreshed testimony. The court then dealt with appellant’s constitutional right to testify in his behalf. Citing Greenfield, supra, the Atwood court decided it was not required to accept such testimony, even if it was all the defendant had, noting it was not required to “accept evidence of uncertain value that is otherwise completely uncorroborated.” The court held the defendant’s constitutional rights were not violated. We think the same reasoning applies here. Appellant’s testimony was restricted only by what, in effect, are standard rules of evidence. The probative value of the proffered testimony is questionable, as we have seen, but in any case, it is substantially outweighed by the other considerations discussed. We note that appellant was in a far better position than either defendant in Atwood or Greenfield who had no testimony to offer other than hypnosis, in that she was allowed to relate the substance of her version of the shooting to the jury, which she had remembered prior to hypnosis. Appellant’s defense was that the shooting was an accident and this she was able to adequately relay to the jury. She testified that she and her husband were quarreling, that he pushed her against the wall, that she wanted to leave because she was frightened, and her husband wouldn’t let her go. She said her husband’s behavior that night was unusual, and the shooting was an accident, that she didn’t mean to do it and that she would not intentionally hurt her husband. In reality nothing was excluded that would have been of much assistance to appellant, or would have enlarged on her testimony to any significant degree. Yet given the available information on the effect of hypnosis and the attendant difficulties of such testimony, the state’s desire to confine appellant’s testimony to the pre-hypnotic memories is warranted. The trial court was faced with a difficult situation at best when presented with a witness who had been hypnotized and the damage done before any ruling could be made. We think the trial court took the proper course in its ruling and any prejudice or deprivation caused to appellant in this case was minimal and resulted from her own actions and not by any erroneous ruling of the court. We can find no violation of her constitutional rights. Ill APPELLANT’S OUT-OF-COURT STATEMENT Appellant alleges error in the trial court’s exclusion of a statement in a police officer’s report, attributed to the appellant, that she “had the gun in her hand and it went off.” The statement was excluded as hearsay. Appellant relies on Unif. R. Evid. 801(d): Statements which are not hearsay. A statement is not hearsay if: (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . (ii) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive. . . Rule 801 does not sustain the argument, as the proffered statement does not come within the exception. For the rule to apply, the prior consistent statement must be made before a motive to falsify has arisen: [I]f the attacker has charged bias, interest, corrupt influence, contrivance to falsify, or want of capacity to observe or remember, the applicable principle is that the prior consistent statement has no relevancy to refute the charge unless the consistent statement was made before the source of the bias, interest, influence or incapacity originated. McCormick on Evidence, § 49 (1984). The same principle has been explained in other words: Some decisions also mention that the consistent statement should have been made before the witness would foresee its effect upon the fact issue. Id., n. 24. In Brown v. State, 262 Ark. 298, 556 S.W.2d 418 (1977), the defendant made the same argument. Brown testified that he was in Memphis at the time of the robbery. A witness was called to testify that Brown telephoned her that evening and said he was in Memphis. The statement was excluded as hearsay, Rule 801 having no application to the case, because “Brown, if guilty, had the same motive for fabrication when he made the alleged telephone call as he had when he testified in the case.” We further stated in Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980), the statements were not admissible “because the motive for fabrication was as great when the first statement was made as when the testimony was given.” Similarly, appellant’s motive in describing the shooting as an accident at the time of arrest was the same as it would be when giving that testimony at trial. The court was correct in excluding the testimony as hearsay. IV INTRODUCTION OF HASHISH REFUSED The final point of error concerns a small amount of hashish found in Frank Rock’s shirt pocket following the shooting. There is no proof that he had used it, nor what the effects might be if he had, but appellant insists she should have been permitted to offer this proof as having relevance to the alleged violent behavior by Rock. The premise is too conjectural on this record and whether its relevance warranted acceptance was within the trial court’s discretion. Hamblin v. State, 268 Ark. 497, 597 S.W.2d 589 (1980); Shelton v. State, 287 Ark. 322, 699 S.W.2d 728 (1986). Affirmed. Purtle, J., not participating. These safeguards are well outlined by the New Jersey Supreme Court: Whenever a party in a criminal trial seeks to introduce a witness who has undergone hypnosis to refresh his memory, the party must inform his opponent of his intention and provide him with the recording of the session and other pertinent material. The trial court will then rule on the admissibility of the testimony either at a pretrial hearing or at a hearing out of the jury’s presence. In reviewing the admissibility of hypnotically refreshed testimony, the trial court should evaluate both the kind of memory loss that hypnosis was used to restore and the specific technique employed based on expert testimony presented by the parties. The object of this review is not to determine whether the proffered testimony is accurate, but instead whether the use of hypnosis and the procedure followed in the particular case was a reasonably reliable means of restoring the witness’ memory. The first question a court must consider is the appropriateness of using hypnosis for the kind of memory loss encountered. The reason for a subject’s lack of memory is an important factor in evaluating the reliability of hypnosis in restoring recall. According to defendant’s expert, Dr. Orne, hypnosis often is reasonably reliable in reviving normal recall where there is a pathological reason, such as a traumatic neurosis, for the witness’ inability to remember. Orne, supra, at 325. On the other hand, the likelihood of obtaining reasonably accurate recall diminishes if hypnosis is used simply to refresh a witness’ memory or concerning details where there may be no recollection at all or to “verify” one of several conflicting accounts given by a witness. Id. at 324, 332. A related factor to be considered is whether the witness has any discernible motivation for not remembering or for “recalling” a particular version of the events. In either case, the possibility of creating self^erving fantasy is significant. . . . Once it is determined that a case is of a kind likely to yield normal recall if hypnosis is properly administered, then it is necessary to determine whether the procedures followed were reasonably reliable. Of particular importance are the manner of questioning and the presence of cues or suggestions during the trance and the post-hypnotic period. . . . [citing Orne and others] An additional factor affecting the reliability of the procedure is the amenability of the subject to hypnosis. . . . To provide an adequate record for evaluating the reliability of the hypnotic procedure, and to ensure a minimum level of reliability, we also adopt several procedural requirements based on those suggested by Dr. Orne and prescribed by the trial court. . . . Before it may introduce hypnotically refreshed testimony, a party must demonstrate compliance with these requirements. First, a psychiatrist or psychologist experienced in the use of hypnosis must conduct the session. . . . Second, the professional conducting the hypnotic session should be independent of and not regularly employed by the prosecutor, investigator or defense. Third, any information given to the hypnotist by law enforcement personnel or the defense prior to the hypnotic session must be recorded, either in writing or in other suitable form. . . . Fourth, before inducing hypnosis the hypnotist should obtain from the subject a detailed description of the facts as the subject remembers them. . . . Fifth, all contacts between the hypnotist and the subject must be recorded. This will establish a record of the preinduction interview, the hypnotic session, and the posthypnotic period, enabling a court to determine what information or suggestions the witness may have received. . . . Sixth, only the hypnotist and the subject should be present during any phase of the hypnotic session, including the prehypnotic testing and the post-hypnotic interview. . . . State v. Hurd, supra. In deciding to discard the Hurd approach, the Shirley court noted initially that it was not persuaded that the requirements adopted in Hurd and other cases would eliminate each of the dangers at which they were directed. For example, one of the requirements set forth in Hurd is that all contacts between the hypnotist and the subject must be recorded for the stated purpose of enabling the trial court to determine what “cues” the hypnotist may have conveyed to the subject by word or deed; and the opinion strongly encouraged the use of videotape to make such recordings. Yet as the same opinion recognizes elsewhere, “Because of the unpredictability of what will influence a subject, it is difficult even for an expert examining a videotape of a hypnotic session to identify possible cues.” If even an expert cannot confidently make that identification, it is vain to believe that a layman such as a trial judge can do so. 181 Cal. Rptr. at 255. f.n. 24 The court points out that certain dangers of hypnosis are not even addressed by the Hurd requirements recognized elsewhere in that opinion, such as the subject losing his critical judgment and crediting memories that were formerly viewed as unreliable, confusing actual recall with confabulation and the unwarranted confidence in the validity of his ensuing recollection.

James R. Cooper, Judge. The appellant, Roberts and Company, Inc., initiated this action by filing suit against the appellees for breach of contract. The appellant alleged that the appellees had contracted with it to build a shell building and to construct a restaurant in a portion of the building. The appellant complained that the breach occurred when the appellees allowed another builder, Bill Horvath, to construct the restaurant. The appellees answered with a general denial. The appellees then filed suit against Roberts, Horvath, and their respective bonding companies alleging that the builders had breached their contracts by failing to perform in a workmanlike manner and breach of warranties. The appellees had discovered that the roof leaked and claimed damages for repair of the roof, and additional damages for the destruction of personal property due to the leaks. All of the cases were consolidated for trial. Shortly before trial, the appel-lees reached a settlement with Horvath, and an escrow account which had been established pending the litigation was distributed. The suit between Roberts and the appellees went to trial, and the jury awarded the appellees a judgment for $20,000.00. On appeal, the appellant argues that the trial court erred in failing to instruct the jury on the definition of substantial performance, and in refusing the appellant’s request to disclose to the jury the amount of the settlement between the appellees and Horvath. We find no merit to the appellant’s arguments and we affirm. At the conclusion of the evidence, the jury was instructed as follows: You are instructed that a contractor is required to produce a building that is in substantial compliance with the requirements of the contract and specifications. That is to say that when the building substantially complies with the plans and specifications, it is acceptable even though there may be some deviations from the contract. It is for you to decide if there is substantial compliance with the contract. The instructions proffered by the appellant were essentially the same except for the following passage which was added at the end of the above instruction: [e]ven though there may be some deviations from the contract as are inadvertant or unintentional or not due to bad faith, do not impair the structure as a whole, or remedial without doing material damage to other parts of the building in tearing down and reconstruction. It is the appellant’s contention that the proffered addition to the instruction defines the legal term “substantial compliance,” and that the trial court erred in refusing to instruct the jury according to the proffered instruction. The trial judge is under a duty to instruct the jury as to the law applicable in the case. Life and Casualty Insurance Co. of Tennessee v. Gilkey, 255 Ark. 1060, 505 S.W.2d 200 (1974). The instruction must be an objective statement of the law. Hough v. Continental Leasing Corp., 275 Ark. 340, 630 S.W.2d 19 (1982). Each party to the proceeding has the right to have the jury instructed upon the law of the case with clarity and in such a manner as to leave no ground for misrepresentation or mistake. W.M. Bashlin Co. v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982). However, a party is not entitled to his particular wording of the jury instructions and a trial judge is not required to say the same thing in different words. Hopper v. Denham, 281 Ark. 84, 661 S.W.2d 379 (1983); Hough, supra. W e hold that the instruction given by the trial court was adequate. Substantial performance cannot be determined by a mathematical rule relating to the percentage of the cost of completion. Pickens v. Stroud, 9 Ark. App. 96, 653 S.W.2d 146 (1983), and the issue of substantial performance is a question of fact. Prudential Insurance Co. v. Stratton, 14 Ark. App. 145, 685 S.W.2d 818 (1985). In the case of a building contract, it is not easy to find the ratio between the unperformed part of the contract and the full promised performance. The difference may be in quality of workmanship and materials. 3A Corbin, Corbin on Contracts § 705 (1951). Corbin goes on to discuss degree of deviation, degree of frustration of purpose and the degree and value of the nonperformance. 3 A Corbin, Corbin on Contracts §§ 705 and 706 (1951). The restatement discusses substantial performance in terms of the materiality of the failure to perform. See Restatement (Second) of Contracts §§ 237 and 241 (1979). It is clear that there is no precise formula to use to instruct a jury as to when there is substantial performance. We find that the instruction used by the trial court clearly explained to the jury the proper standards to use in order to decide the issue of substantial performance. The appellant next argues that the amount of the settlement between Horvath and the appellees should have been disclosed to the jury or, in the alternative, the judgment against the appellant should have been reduced by the amount of the settlement. Again, we disagree. The theory of the appellant’s defense was that it was Horvath’s workmen who damaged the roof, not its workmen. There was extensive testimony as to who was on the roof, who actually worked on the roof, and at what point in time the damage occurred. In order words, the appellant is requesting contribution and cites the Uniform Contribution Among Tortfeasors Act, Ark. Stat. Ann. §§ 34-1001 through 34-1009 (Repl. 1962). However, the appellant’s argument is flawed in two respects. First, even though the appellees pled breach of warranty, the case at bar was limited to an action for breach of contract and the Act applies only to persons liable for torts. Coleman v. Texaco, 286 Ark. 14, 688 S.W.2d 741 (1985). Second, it must appear that, at least originally the person seeking contribution and the person from whom contribution is sought must have been under a common legal liability to the injured party. Welter v. Curry, 260 Ark. 287, 539 S.W.2d 264 (1976). Any liability on Horvath’s part arose under a contract separate and apart from the contract the appellant had with the appellees. The jury was instructed that, if Horvath’s acts intervened and caused damage, then the appellant’s acts were not a proximate cause of the damage. Because there was extensive testimony on the issue of Horvath’s actions, and because the jury was properly instructed, we find no error in the trial court’s refusal to inform the jury of the amount of the settlement or in its refusal to reduce the judgment. Affirmed. Corbin, C.J., and Mayfield, J., agree.

Donald L. Corbin, Chief Judge. This appeal comes to us from the Washington County Circuit Court. Roger Williams appeals his conviction for delivery of a controlled substance. We reverse and remand for a new trial. Appellant was charged with four counts of delivery of a controlled substance in violation of Arkansas Statutes Annotated § 82-2617 (Supp. 1985), for delivering marijuana to undercover police officers. At trial, the jury returned not guilty verdicts as to counts one, two, and four and a verdict of guilty as to count three. Appellant was sentenced to ten years in the Arkansas Department of Correction as a habitual offender under Arkansas Statutes Annotated § 41-1001 (Supp. 1985). For reversal, appellant raises the following arguments: (1) the trial court erred in refusing defendant’s requested jury instruction for duress, and (2) the trial court erred in allowing the State to cross-examine appellant on his prior convictions, sentence received, and actual time served. We address his points in order. At trial, appellant testified that a police department informant had coerced him into delivering the marijuana to the undercover police officers. In support of his contention, appellant presented evidence that: the State’s informant and appellant served time in prison together; the informant had stabbed and seriously injured others in the presence of appellant for not doing what the informant told them to do; appellant was black; the informant was a member of the Aryan Society and signified his membership by the number “666” tattooed between his eyes; the Aryan Society is a white racist group known for violence and identified by the tattoo; the informant had made demands upon the appellant which excited fear in appellant and his wife; and appellant attempted to avoid the informant but the informant was constantly able to track him down. Appellant’s wife also testified that the informant would make uninvited visits to their house and initiate discussion regarding how he liked to stab people when they failed to do what he wanted. Testimony was elicited from witnesses for both sides as to the frightening appearance of the informant. Other testimony ranged from a police officer’s testimony that he wouldn’t be surprised to hear that the informant had stabbed someone for failing to do what he wanted, to testimony from a former Razorback football player that although the informant weighed 25-35 pounds less than the witness, the witness would not want to mess with the informant. At the close of all evidence, instructions were read to the jury which included an instruction on entrapment but omitted defendant’s instruction on duress. In refusing the requested instruction for duress, the trial court stated that since it was admitted that the informant was acting in concert with or at the direction of the police, the duress instruction would be repetitious and had merged into the instruction on entrapment. While we agree that the trial court is not required to give requested instructions where sufficiently covered by other instructions given, Cobb v. State, 265 Ark. 527, 579 S.W.2d 612 (1979), we find basic differences between the entrapment instruction and the duress instruction. In Hill v. State, 253 Ark. 512, 487 S.W.2d 624 (1972) the supreme court held that even if an instruction could be said to have covered the matter in a general way, it is reversible error to refuse to give a specific instruction correctly and clearly applying the law to the facts of the case, unless no prejudice resulted. See also, Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985). The entrapment instruction as read charged the jury that entrapment is an affirmative defense if appellant proves: that a law enforcement officer or any person acting in cooperation with him induced the commission of the offense by using persuasion or other means likely to cause a normally law abiding person to commit the offense. Conduct merely affording a person the opportunity to commit an offense does not constitute entrapment. (Emphasis added). Appellant’s requested instruction would have charged the jury that duress is an affirmative defense if: appellant engaged in the conduct charged because he reasonably believed he was compelled to do so by the threat or use of unlawful force against his person or the person of another that an individual of ordinary firmness in Roger Williams’ situation would not have resisted. Duress is not a defense if Roger Williams recklessly placed himself in a situation in which it was reasonably forseeable that he would be subjected to the force or threatened force. Jury instructions must fully and fairly declare the law applicable to any defense as to which the appellant has offered sufficient evidence to raise a question of fact. Hill, 253 Ark. at 520, 487 S.W.2d at 630. The defense of duress does not require that the defendant be a “normally law abiding person.” Duress requires only that an individual of ordinary firmness would have acted in the same manner as the defendant did. Although other elements of entrapment are similar to those for duress, requiring the jury to apply the standard of the “law abiding person” rather than the “individual of ordinary firmness” resulted in prejudice to the appellant, because of evidence produced that appellant was a convicted felon. Furthermore, the duress instruction specifically informs the jury that it may consider compulsion by use or threat of unlawful force and allows the jury to consider the defendant’s fear with regard to others, as well as himself. The State contends that appellant was not entitled to the instruction on duress, because he failed to carry his affirmative burden of showing an immediate threat of harm. In Hill v. State, 13 Ark. App. 307, 683 S.W.2d 628 (1985) we held that where no evidence exists to support the giving of an instruction, it is not error to refuse to give it. Appellant testified at length to the circumstances surrounding the sale which might support a defense of duress. In our opinion, appellant’s testimony regarding the informant’s history of unprovoked violence, informant’s statements concerning his desire to stab people who would not do what he wanted them to do, and his repeated expression “I kill you” was sufficient to raise a question of fact for the jury, and appellant was therefore entitled to an instruction which fully and fairly declared the law applicable to the defense of duress. Hill v. State, 253 Ark. 512, 487 S.W.2d 624 (1972). Refusal of the instruction constituted reversible error. Appellant also argues that the trial court improperly allowed the State to cross-examine the appellant on his prior convictions, sentence received, and actual time served. Because the issue is unlikely to arise at trial on remand, we find it necessary to treat the argument only summarily. Evidence that the appellant had previous convictions was admissible for the purpose of attacking his credibility. A.R.E. Rule 609. On cross-examination, appellant testified that he had three prior convictions within the past ten years. Appellant’s counsel objected when the State asked the appellant where he was in 1977. The trial court overruled the objection and appellant answered that he was in prison. Over objection, when asked his date of release, appellant answered that he could not remember and the State did not pursue the matter. Although the question regarding his release was impermissible under the evidentiary rules, the answer given by the defendant told the jury nothing about the length of his sentence. We find no prejudice resulting therefrom. Where a defendant gives a negative answer to an isolated, impermissible question, prejudicial or reversible error is not demonstrated. Cox v. State, 264 Ark. 608, 573 S.W.2d 906 (1978). Likewise we find no prejudice resulting from cross-examination regarding appellant’s early release and probation where appellant testified on direct examination that he had been in jail with the informant. Reversed and remanded. Cooper and Mayfield, JJ., agree.

John E. Jennings, Judge. This is a workers’ compensation case. Joan Appleby sustained a compensable injury to her back when she tripped and fell in the parking lot of her employer, Belden Corporation, on June 2, 1983. Her healing period was determined to have ended on December 6, 1983. She received benefits including 5% permanent partial disability. In 1984, her primary physician, Dr. Saer, said that Appleby “should probably be on some form of activity restriction indefinitely. This would involve limited bending and stooping, no heavy lifting over about 25 pounds, and no prolonged sitting or standing.” Mrs. Appleby did not return to work for Belden Corporation and has not sought other employment, but in the spring of 1985 she began helping her husband paint houses. The work was sporadic: she might work as many as six, or as few as three, days a week. Her work involved some carrying of a 14 pound ladder from which she painted. She testified that she had bouts of pain in her back and legs during the time period she was engaged in painting. On October 9,1985, Appleby cleaned her house, mopped the floors, went to a funeral, and picked up hickory nuts from her backyard. That evening she had more pain in her back and legs. On October 10,1985, she painted with her husband briefly and by that night she was in so much pain that she called Dr. Saer and made an appointment to see him the next day. On October 13, 1985, she again contacted Dr. Saer and asked to be hospitalized. Dr. Saer put her in the hospital on October 17. He testified that “probably her symptoms were caused by her activity level prior to her admission. When you consider her problem from before, the activities such as mopping the floor and painting would be sufficient to cause the type of problems she experienced when I hospitalized her.” The appellant subsequently filed a claim for additional compensation. The Commission held that her activities prior to her hospitalization constituted an independent intervening cause and denied the claim. Appellant’s first argument is that this finding is not supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Surridge v. State, 279 Ark. 183, 650 S.W.2d 561 (1983). On review, in workers’ compensation cases, we view the evidence in the light most favorable to the findings of the Commission and give the testimony its strongest probative force in favor of the action of the Commission. McCollum v. Rogers, 238 Ark. 499, 382 S.W.2d 892 (1964). We do not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have arrived at the conclusion reached by the Commission. Silvicraft, Inc. v. Lambert, 10 Ark. App. 28, 661 S.W.2d 403 (1983). The issue in Guidry v. J & R Eads Construction Co., 11 Ark. App. 219, 669 S.W.2d 483 (1984), was the same as the issue here. In Guidry, we said that the question is whether there is a causal connection between the primary injury and the subsequent disability; and if there is such a connection, there is no independent intervening cause unless the subsequent disability was triggered by activity on the part of the claimant which was unreasonable under the circumstances. One of the circumstances which should be considered in deciding if the “triggering activity” was reasonable is the claimant’s knowledge of his condition. See Larson, The Law of Workmen’s Compensation § 13.11 (1986). In this case Dr. Saer testified: I explained to her that she had an injury to her back and she is likely to have problems with her back, depending on her activity level in the future and she will be able to control her symptoms by controlling her activity. We had gone through this before and she had been to the back school before. A lot of people have this problem and do well as long as they’re somewhat judicious in activity and if they overdo it, they’re likely to cause a flareup and that’s basically her situation. Based on the facts of the case at bar, we believe that the Commission’s finding of an independent intervening cause is supported by substantial evidence. Appellant’s second argument is that the case must be reversed because it was decided at the Commission level without a quorum. Ark. Stat. Ann. § 81-1342(e) (Repl. 1976), provides: A majority of the Commission shall constitute a quorum for the transaction of business, and vacancies shall not impair the right of the remaining members to exercise all the powers of the full Commission, so long as a majority remains. This case was decided by the full Commission on January 8, 1987. The order is signed by Commissioner Tatum and Commissioner Farrar, with Commissioner Griffin not participating. In an opinion delivered June 1,1987, the Arkansas Supreme Court held that Commissioner Farrar did not meet the statutory requirements for service on the Commission. Webb v. Workers’ Compensation Commission, 292 Ark. 349, 730 S.W.2d 222 (1987). Appellant’s argument is that her claim was decided by only one qualified commissioner, and one commissioner does not constitute a quorum. This argument must fail. Farrar was clearly a de facto official. A de facto official is one who by some color of right is in possession of office and for the time being performs his duties with public acquiescence, though having no right in fact. The acts of an officer de facto are as valid and effectual, while he is permitted to retain the office, as though he were an officer by right. State v. Roberts, 255 Ark. 183, 499 S.W.2d 600 (1973); Faucette, Mayor v. Gerlach, 132 Ark. 58, 200 S.W. 279 (1918). The acts of an officer de facto cannot be questioned collaterally. If the officer’s title is questioned in a proceeding to which he is not a party or which was not instituted specifically to determine the validity of his title, the attack is collateral. State v. Roberts, cited above; see also, Keith v. State, 49 Ark. 439, 5 S.W. 880 (1887). The official actions taken by Farrar while serving as commissioner were legally valid and effectual notwithstanding the supreme court’s determination that he was not qualified to serve. Affirmed. Corbin, C.J., and Coulson, J., agree.

Donald L. Corbin, Chief Judge. This appeal comes from the Arkansas Workers’ Compensation Commission. Appellant, Clifton Henson, appeals the Commission’s finding that he is not entitled to workers’ compensation benefits for psychiatric treatment for psychological disorders that appellant claims constituted a pre-existing condition, which was aggravated by his compensable burn injury. We affirm. On June 18, 1982, appellant, Clifton Henson, was in an accident in which he was burned and disfigured while acting in the course and scope of his employment with appellee, Club Products. In February of 1984, appellant was hospitalized for almost two months for severe psychiatric problems. Appellant’s medical and psychiatric history indicates he was admitted to Arkansas State Hospital twice in 1981 and both times was discharged against medical advice without a formal diagnosis. The medical records indicate appellant was depressed, confused, and believed his life was threatened. The provisional diagnosis for appellant indicated paranoia and alcohol abuse. Appellant was also admitted to Baptist Medical Center psychiatric unit in 1981 for alcohol abuse, emotional and family problems. Appellant was hospitalized in 1982 for his burn injury and also received psychiatric treatment at this time. In 198 3 appellant was admitted to Baptist Medical Center for possible abdominal ascites secondary to alcoholic cirrhosis with the diagnosis stating there was abnormal liver function probably secondary to alcohol, no cirrhosis. In 1984, appellant was admitted to the BridgeWay with a diagnosis of major depressive episode and major depressive episode with psychotic features. The BridgeWay’s master treatment plan for appellant listed alcohol abuse as one of appellant’s problems and observation for DT’s as one of his needs. While still being treated at the BridgeWay in 1984, appellant was sent to Riverview Hospital for evaluation of chest pains. The diagnosis revealed alcohol withdrawal, alcohol jealousy, bronchitis, and paranoia. By an opinion dated July 29,1986, the Administrative Law Judge found that appellant’s medical treatment for the burn injury was compensable, but the psychiatric treatment was not. The full Commission affirmed the Administrative Law Judge in a two to one decision on January 21,1987, finding that appellant’s psychological disorders were not causally connected to his com-pensable burn injury. The Commission concluded that appellant had been experiencing a progressively deteriorating psychological condition since 1981, prior to his burn injury. The Commission noted that appellant’s condition is complicated by his deafness, family problems, alcoholism and substance abuse. The Commission stated that it was apparent that alcoholism was a continuing factor in claimant’s progressing emotional disorders. The Commission considered conflicting medical testimony regarding whether appellant’s mental disorders were causally connected to his burn injury and held there was no causal connection between the appellant’s psychological disorders and his compensable burn injury. For reversal, appellant makes the following argument with two sub-issues: (I) Claimant suffered an aggravation of a pre existing condition which is compensable under Arkansas law; (A) the full Commission erred by not addressing the issue of aggravation of pre-existing condition, therefore, its finding is incorrect as a matter of law; (B) the full Commission’s finding that there was no causal connection between the industrial accident and claimant’s subsequent psychological treatment is not supported by substantial evidence, and is, therefore, incorrect as a finding of fact. On appellate review of workers’ compensation cases the evidence is reviewed in the light most favorable to the finding of the Commission and given its strongest probative value in favor of its order. The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding. Bearden Lumber Company v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). The extent of our inquiry is to determine if the finding of the Commission is supported by substantial evidence and, even where a preponderance of the evidence might indicate a contrary result, we will affirm if reasonable minds could reach the Commission’s conclusion. It is also well settled that the Commission is better equipped by specialization, insight, and experience to translate, analyze, and determine issues and to translate evidence into findings of fact. Burks v. Anthony Timberlands, 21 Ark. App. 1, 727 S.W.2d 388 (1987). To reverse a decision of the Commission, we must be convinced that fair-minded persons, with the same facts before them, could not have reached the conclusion arrived at by the Commission. Franklin Collier Farms v. Chapple, 18 Ark. App. 200, 712 S.W.2d 334 (1986). The principle applicable to the case at bar is addressed by Professor Larson as follows: When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant’s own intentional conduct. 1 A. Larson, The Law of Workmen’s Compensation § 13.00 (1985). This principle was accepted by the Arkansas Supreme Court in Aluminum Company of America v. Williams, 232 Ark. 216, 335 S.W.2d 315 (1960). This court cited Williams as follows: We conclude that in all of our cases in which a second period of medical complications follows an acknowledged compensable injury we have applied the test set forth in Williams — that where the second complication is found to be a natural and probable result of the first injury, the employer remains liable. Only where it is found that the second episode has resulted from an independent intervening cause is that liability affected. While there may be some variance in the words used to describe the principle, there has been no departure from the basic test, i.e., whether there is a causal connection between the two episodes. Bearden, 7 Ark. App. at 71, 335 S.W.2d at 319 (citations omitted). In the present case, the Commission considered all of the evidence and found no causal connection between appellant’s psychological disorders and his compensable burn injury. The medical testimony regarding the causal connection was conflicting. At the hearing, appellant’s psychiatrist, Dr. Farrell, testified that claimant’s emotional problems were related to his burn injuries. Specifically, Dr. Farrell testified that he found appellant to be psychotic and extremely depressed. He was hallucinating and hearing voices. Dr. Farrell noted that appellant was not in touch with reality and was unable to care for himself at home. Dr. Farrell stated that when appellant was in the BridgeWay, appellant thought he was smelling burning hair. One patient had had her hair permed and appellant smelled that and became extremely paranoid and delusional, which Dr. Farrell interpreted as evidence indicating that appellant’s psychiatric problems were the result of the burn. The record contains evidence that another psychiatrist, Dr. Winston Brown, opined that there was little or no connection between the burn and appellant’s psychiatric disorders and that the BridgeWay treatment procedures were not appropriate for appellant. Pertinent parts of Dr. Brown’s letter regarding appellant’s treatment at the BridgeWay are as follows: It is quite obvious that alcoholism preceded his burn injury. His working diagnosis by his physician since the burn has been major depressive episodes with psychotic features. It is said the treating physician feels this effective disorder is directly related to his burn. There are a number of contradictions in the medical records to suggest that this is not an accurate diagnosis for this man. . . . Because of the contradictions mentioned above, I feel this man’s psychiatric treatment may well be aimed toward psychiatric conditions existing before his burn injury. In addition, although it is said that his emotional difficulties are the result of trauma secondary to the injury, I find little, and almost nothing in the records to suggest that any emotional trauma following the accident is being dealt with by his physician or other medical staff members. The Commission considered the testimony of both doctors and held there was substantial evidence to conclude that there was no causal connection between appellant’s emotional problems and his compensable burn injuries. The Commission noted that the descriptions of paranoia, confusion and people trying to harm him were no different than those findings made in 1981 at the Arkansas State Hospital. The Commission also noted that it was apparent that alcoholism was a continuing factor in claimant’s progressing emotional disorders and that there is an unexplained gap between his burn injury and his hospitalization at the BridgeWay. The Commission concluded that the lone fact that appellant thought he smelled burning hair after smelling another patient’s hair permanent chemicals was not enough to sustain the burden of proving his emotional problems were caused by his burn injuries. Medical opinions are admissible and frequently helpful in Workers’ Compensation cases, but they are not conclusive. Boyd v. General Industries, 22 Ark. App. 103, 733 S.W.2d 750 (1987). This court held in Fletcher v. Farm Bureau Insurance Company, 10 Ark. App. 84, 661 S.W.2d 431 (1983), that when medical evidence is conflicting, the resolution of the conflict is a question for the Commission, and when the Commission chooses to accept the testimony of one physician in such cases, the court is powerless to reverse the decision. In the present case, the Commission resolved the conflicting medical testimony in favor of the appellee and found no causal connection between appellant’s psychological disorders and his compensable burn injury. We find there is substantial evidence to support the Commission’s finding that appellant failed to show by a preponderance of the evidence that his psychological disorders were causally connected to his burn injury. Appellant’s other contention for reversal is that the Commission erred in failing to address the issue of aggravation of a pre-existing condition. Professor Larson discusses the issue of compensation for aggravation of a pre-existing condition as follows: Pre-existing disease or infirmity of the employee does not disqualify a claim under the “arising out of employment” requirement if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the death or disability for which compensation is sought. This is sometimes expressed by saying that the employer takes the employee as he finds him. 1 A. Larson, The Law of Workmen’s Compensation § 12.20 (1985). Professor Larson addresses the subject of compensation for psychological injuries resulting from trauma by stating that: [w]hen there has been a physical accident or trauma, and claimant’s disability is increased or prolonged by traumatic neurosis, conversion hysteria, or hysterical paralysis, it is now uniformly held that the full disability, including the effects of the neurosis, is compensable. 1B A. Larson, The Law of Workmen’s Compensation § 42.22(a) (1987). This rule was restated in Boyd v. General Industries, 22 Ark. App. at 108, 733 S.W.2d at 752 (1987), where we stated, “clearly the disabling effects of this type disorder are compensa-ble if the requirement of a causal connection is met.” In the case at bar, we hold there is substantial evidence to support the Commission’s finding that appellant’s psychological disorders are not causally connected to his burn injury. Without the causal connection, there is no basis for arguing the issue of aggravation of a pre-existing condition. In the case at bar, the requirement of a causal connection is not met; therefore, the Commission did not err in not finding appellant’s psychological disorders compensable as an aggravation of a preexisting condition. Affirmed. Cooper and Coulson, JJ., agree.

George K. Cracraft, Judge. Jack C. Carpenter appeals from a judgment of $11,266.09 entered against him and in favor of the estate of Hubert Schneider, deceased. He advances three points of error, each challenging the sufficiency of the evidence. We find no merit in any of the points and affirm. After the death of Hubert Schneider, Joyce Schneider, his widow, was appointed administratrix of his estate and brought this action against Jack C. Carpenter to recover $9,500.00 alleged to have been owed by him to the deceased. The action is based on two written instruments. The first was a writing which stated: “I, Jack Carpenter, owe Hubert Schneider $6,000.00. /s/ Jack Carpenter, 1-26-85.” The second was a cancelled check dated February 1, 1985, in the amount of $3500.00, drawn on the account of the deceased, and payable to the order of Jack C. Carpenter and endorsed by him. Appellant answered, pleading the affirmative defenses of accord and satisfaction, failure of consideration, and payment. At trial, all hearsay evidence was excluded. Appellee introduced the two writings into evidence, stating that she knew nothing of the transactions other than what her husband had told her and rested her case. The appellant testified that the signature on the first writing was genuine and that he had received and cashed the check for $3,500.00. He stated that he and the decedent had planned to go into a business together to which the decedent was to contribute $5,000.00. He stated that the acknowledgment of indebtedness was executed in the amount of $6000.00 in order to show the decedent that the appellant fully expected the venture to be profitable. He testified, however, that the acknowledgment of debt was signed before any funds were advanced under it. He admitted receiving and cashing the check for $3500.00, but claimed that it was intended to be a portion of the $5000.00 to be advanced by the decedent. Appellant also claimed he had repaid the $3500.00 to the decedent the day he was discharged from the hospital but produced no receipts for the money. The trial court found that appellee had met her burden of proving both that the appellant owed the $6000.00 as evidenced by the acknowledgment of indebtedness and the $3500.00 as evidenced by the check, and that the appellant had failed to prove his affirmative defenses. The appellant contends that the trial court erred in denying his motion for a directed verdict; that the evidence is insufficient to support the judgment; and that the court erred in finding that the acknowledgment of the indebtedness constituted a promissory note raising a prima facie case in favor of the appellee. We find no merit in these contentions. During the trial and in his closing remarks, the trial court did refer to the acknowledgment of indebtedness as a promissory note and stated that it was sufficient to establish a prima facie case which shifted the burden to prove the affirmative defenses to the appellant. The appellant argues that this was error because that document did not meet the true definition of a promissory note. Earlier cases hold that documents similar to the one in question constitute promissory notes payable on demand, even though not negotiable. Huyck v. Meador, 24 Ark. 191 (1866). Appellant argues that these cases are no longer applicable because Ark. Stat. Ann. § 85-3-102(1)(c) (Add. 1961) requires that a promise be “more than an acknowledgement of an obligation.” It is not necessary for us to address that question because we conclude that, whether the document be determined to be a note or acknowledgment of a debt, the burden to prove any affirmative defenses was properly placed upon the appellant. In Anderson v. Pearce, 36 Ark. 293 (1880),it was held that an instrument containing an acknowledgment of debt is a “due bill” and creates an enforceable obligation which implies a valid consideration and promise to repay on demand. Here, the appellant acknowledged that the signature on the instrument was genuine. Valid consideration and a promise to repay were therefore implied. The burden of proving his affirmative defenses rested on appellant. The court was not required to believe appellant’s testimony that there was failure of consideration. Appellant next contends that the evidence was insufficient to support a finding that he was obligated to repay the $3500.00 evidenced by the decedent’s check. Appellant admitted cashing the check but stated that he had repaid the decedent in cash on the date he was dismissed from the hospital. He stated that the decedent wanted payment in cash because he needed money for a trip to England with the National Guard. He stated that the deceased put the money in his pants’ pocket before he left the hospital. Appellee and her daughter, however, testified that appellant did not visit the deceased on the day he was discharged from the hospital. Appellee testified that decedent left the hospital dressed in pajamas, that he was still wearing them when she unpacked his bags for him, and that she found no cash, other than a few coins, among his clothing. Appellee further testified that before her husband left on the trip to England she had cashed checks at grocery stores to obtain cash for him. We conclude that the trial court properly ruled, on introduction of the documents and proof of the signature, that the burden of proving any affirmative defenses shifted to the appellant. We cannot conclude that the trial court’s finding that appellant failed to meet his burden is clearly against a preponderance of the evidence. Affirmed. Cooper and Mayfield, JJ., agree.

George Rose Smith, Justice. This is an effort by the appellant Neeley to avoid paying a filing fee for appealing to the circuit court from a misdemeanor conviction in the municipal court. We agree with the circuit judge’s ruling that a fee must be paid. Neeley was convicted of a misdemeanor by the Pope County municipal court. When he tried to appeal to the circuit court, the circuit clerk demanded a filing fee. Neeley first sought a writ of mandamus to compel the clerk to accept the appeal without a filing fee. When that petition was resisted, Neeley, who does not assert indigency, paid the fee and asked the circuit court for a declaratory judgment sustaining his contention that no filing fee was due. Neeley’s appeal from a declaration that the fee must be paid comes to us under Rule 29(1)(a) and (c). Neeley first argues that the applicable statute, Act 333 of 1977, does not require the fee. When, however, the statute is read as a whole and in the light of its predecessor, it is almost too clear for argument that the filing fee is required. Before the 1977 act was passed, the pertinent statute enumerated about 60 different fees to be charged by the circuit clerk, some as small as ten or fifteen cents. See the compiler’s note to Ark. Stat. Ann. § 12-1710 (Repl. 1979). Section 2 of the 1977 act reduced that long list to 14 larger and more generalized fees. § 12-1710. Section 1 of the 1977 act established a uniform advance fee to be charged by circuit clerks for “initiating a cause of action” in the circuit court, no part of the fee being refundable. §12-1710.2. Section 1 goes on to provide that if “a cause of action” in the circuit court becomes unusually lengthy and the filings become so voluminous that the advance fee proves inadequate, an additional fee may be assessed for each additional filing, in accordance with the new schedule. One of the 14 enumerated fees is “[f]or entering each appeal from inferior court, $15.00.” § 12-1710(h). Neeley argues that filing an appeal from municipal court is not “initiating a cause of action” in the circuit court, but the statute clearly indicates otherwise. That is, the same section of the statute states that if “a cause of action” becomes so lengthy as to require more fees than are covered by the advance fee, then additional charges may be made. The legislature evidently used “cause of action” to mean a case. Furthermore, one of the specific fees now covered by the advance fee is that for an appeal from an inferior court. Hence the judge was right in holding that the advance fee must be paid in this instance. Neeley also argues that even if he can be charged with court costs if convicted, the fee should be refunded if he is acquitted. That objection is premature, for Neeley may not in fact be acquitted. It is not our practice to explore academic questions or render advisory opinions. Neeley’s final argument is that since he is entitled under the Constitution to a jury trial, he cannot be charged a fee for demanding that constitutional protection. The fee is not being imposed because Neeley wants a jury trial. It is simply a filing fee that is collected no matter whether he is tried by a jury or by the judge or even if the prosecution ends without any trial at all. Neeley is admittedly not an indigent and therefore has no claim to an exemption from the payment of filing fees for services rendered by the circuit clerk. His undoubted right to a jury trial is totally irrelevant to his refusal to pay the fee imposed by law for the circuit clerk’s services. Affirmed. Purtle, J., not participating. Newbern, J., dissents.

Robert H. Dudley, Justice. During the late evening and early morning of December 7 and 8,1984, the appellant committed two burglaries, an aggravated assault, a battery, a kidnapping, and a rape, before committing the burglary and the second degree battery which are on appeal in this case. The appellant contends the evidence in the two cases on appeal is insufficient to support the convictions. We find no merit in the argument and affirm both judgments of conviction. In the early evening of December 7,1984, Terry Nolen and his wife, Kay, went shopping and then returned to their home in west Little Rock where they decorated their Christmas tree, wrapped presents, put their children to bed, and began watching the late movie on television. While in the den watching the movie, the Nolens dozed off. At this time, unknown to the Nolens, the appellant was beginning his rampage in the neighborhood. Sometime between 12:30 and 1:00 a.m., they were awakened by a noise. They looked up and saw a man standing in front of them. His blue jeans were unbuttoned at the waist, and the fly was partially unzipped. The intruder, appellant, never spoke but motioned for Terry Nolen to go into the kitchen. Nolen started toward the kitchen when appellant grabbed him by the right arm, turned him around, and hit him on the side of the face, and knocked his glasses off. Appellant hit him again, and Nolen started to fight back. Nolen tackled the appellant, and in so doing, Nolen broke his kneecap on the den floor. Appellant then ran out of the Nolen’s house and was captured a short distance away. Appellant argues that the evidence is insufficient to sustain the conviction for second degree battery. The second degree battery statute, Ark. Stat. Ann. § 41-1602(1 )(a) (Supp. 1983), contains three elements: (1) a battery, (2) committed with the purpose of causing physical injury, and (3) causing serious physical injury. Appellant, in effect, argues that he only intended to cause physical injury, not serious physical injury, and therefore, the third element is missing. The argument is based on a misconstruction of the statute. The only specific intent required by the statute is the intent to cause physical injury. Unquestionably, twice striking Nolen on the side of the face with his fist was evidence of an intent to cause physical injury. The third element, causing serious physical injury, was supplied when the serious physical injury actually occurred. In anticipation of the above holding, appellant argues that even if the only intent required was the intent to commit physical injury, and he was found to have that intent at the time he struck Nolen, that intent had ceased by the time that Nolen broke his kneecap. Thus, he argues, he did not have the requisite intent to cause physical injury at the moment the serious physical injury occurred. The argument is without factual support. Viewing the evidence most favorably to the appellee, as we must do, the blows to Nolen and the breaking of the kneecap were a part of one continuous occurrence. There was evidence to indicate that the prerequisite intent was still present. In addition, the appellant argues that the evidence was insufficient to sustain the conviction for burglary. The elements of the crime of burglary are: (1) the entering or remaining unlawfully in an occupiable structure of another person, (2) with the purpose of committing therein an offense punishable by imprisonment. Ark. Stat. Ann. § 41-2002(1) (Repl. 1977). Appellant does not dispute that the evidence was sufficient on the first element, entry. Instead, he argues that the State did not prove the second element, intent to commit an offense punishable by imprisonment. The short answer to the argument is that the State did prove by direct evidence that while inside the victim’s home the appellant did, in fact, intentionally commit an offense punishable by imprisonment, second degree battery. Affirmed. Purtle, J., not participating.

Robert H. Dudley, Justice. Appellant, Kim Smith, entered into a written contract with the appellee, Figure World Plus, Inc., by which appellee agreed to make its health club facilities available for one year, and appellant agreed to pay $30.00 initially and $10.00 per month for one year. The contract also provided for a late charge in the amount of $10.00 for each month in which payment was late. The appellant defaulted on nine of the monthly payments. The appellee filed suit for $180.00 representing $90.00 due for the facilities being available and $90.00 for nine late charges. The appellant defended by arguing that the $90.00 in late charges amounted to usurious interest. The trial court granted judgment for $180.00. We affirm. A late charge which is in the nature of a penalty will not render a transaction usurious. Harris v. Guaranty Financial Corp., 244 Ark. 218, 424 S.W.2d 355 (1968). However, a charge which is labeled a penalty, but which is really a subterfuge for interest, may render a transaction usurious. Redbarn Chemicals, Inc. v. Bradshaw, 254 Ark. 557, 494 S.W.2d 720 (1973). Although we examine each case of this type on all of its own particular facts, two of the principal factors in determining if the charge is truly a penalty are whether the charge is fixed in amount and whether it is assessed as a one-time charge. Bunn v. Weyerhaeuser Co., 268 Ark. 445, 598 S.W.2d 54 (1980). We look to those two factors because they are indicators of whether the charge is designed to induce prompt payment and whether the borrower has it in his power to avoid the charges. Hayes v. First National Bank of Memphis, 256 Ark. 328, 507 S.W.2d 701 (1974). Here, the charges met the test of a penalty because they were fixed in amount and they were charged only one time. They were not compounded. Appellant contends that the charges are excessive because they do not bear any relationship to the appellee’s added expenses incurred in attempting to collect the past due installments. The argument is without merit because the appellant offered no proof on the subject and the burden was upon her to show usury. Hayes v. First National Bank of Memphis, supra. Affirmed. Purtle, J., not participating.

Robert H. Dudley, Justice. Appellees, Norflet Hamzy, Ralph Kuykendall, and Dana Kuykendall stand charged with keeping a gambling house. The police obtained telephone company records, relating to appellees’ telephone activities, by use of a prosecuting attorney’s subpoena rather than by use of a search warrant. With the information so gained, the police secured search warrants for the homes of two of the appellees and there seized gambling paraphernalia. The appellees filed a motion to suppress the evidence. The trial court granted the motion. The State filed this interlocutory appeal under Ark. Sup. Ct. R. 29(1)(k) and A.R.Cr.P. Rule 36.10. We reverse. A confidential informant reported to the Little Rock police that a wager could be placed by calling a certain telephone number. For three days the police monitored the informant’s calls to the number and verified that bets could be made by calling the number. The police apparently did not know the names of all of the appellees and did not know the address of the person or persons who held the number. A deputy prosecutor issued a prosecutor’s subpoena directing the telephone company to produce records and information concerning the number. The subpoena commanded that the information be produced for an investigation conducted by the Little Rock Police Department. At trial, the appellees made a very narrow suppression argument. They only argued that the Fourth Amendment was violated by an unauthorized search. They contended that the prosecuting attorney’s office abused its subpoena power by authorizing the police to seize evidence. The trial court was unquestionably correct in holding that the seizure was unlawful on that basis. The police do not have the power to issue subpoenas. A prosecutor does have the power to issue subpoenas. Ark. Stat. Ann. §43-801 (Repl. 1977). The prosecutor’s power to subpoena, however, must be used only for a prosecutor’s investigation. Duckett v. State, 268 Ark. 687, 600 S.W.2d 18 (Ark. App. 1980). Here, the prosecutor abused his power to subpoena when he commanded that records be produced for the police. Such a misuse of the subpoena power effectively gave the subpoena power to the police. Clearly, the information from the telephone company was unlawfully seized. That information, in turn, was used to obtain warrants for the search of two of appellees’ homes where the gambling paraphernalia were seized. The appellees successfully argued below that the evidence should be suppressed because of the unlawful seizure from the telephone company. Neither the Supreme Court of the United States nor this court has ever held that unlawfully seized evidence is inadmissible against all persons, or in all proceedings. See, e.g., Rakas v. Illinois, 439 U.S. 128, 134 (1978); United States v. Ceccolini, 435 U.S. 268, 275 (1978); Stone v. Powell, 428 U.S. 465, 486 (1976). The reason is “each time the exclusionary rule is applied it exacts a substantial social cost for the vindication of Fourth Amendment rights. Relevant and reliable evidence is kept from the trier of fact and the search for truth at trial is deflected.” Rakas v. Illinois, 439 U.S. 128, 137 (1978). The State argues that these appellees do not have standing to question the unlawful seizure from the telephone company, and therefore, the exclusionary rule should not be applied in this proceeding. The doctrine of standing to invoke the Fourth Amendment exclusionary rule has now evolved to focus on a defendant’s substantive Fourth Amendment rights. Id., at 140. Under this test a court should not exclude evidence under the Fourth Amendment unless it finds that an unlawful search or seizure violated the defendant’s own constitutional rights, and his rights are violated only if the challenged conduct invaded his legitimate expectation of privacy rather than that of a third party. United States v. Payner, 447 U.S. 727, 731 (1980); Rakas v. Illinois, 439 U.S. 128, 133-140, 143 (1978). The unlawfully seized evidence should not be suppressed unless the appellees had a legitimate expectation of privacy in the evidence. The concept of a legitimate expectation of privacy is set out in Rakas v. Illinois, 439 U.S. 128, 143 n.12 (1978): Obviously, however, a “legitimate” expectation of privacy by definition means more than a subjective expectation of not being discovered. A burglar plying his trade in a summer cabin during the off season may have a thoroughly justified subjective expectation of privacy, but it is not one which the law recognizes as “legitimate.” His presence, in the words of Jones, 362 U.S., at 267, is “wrongful”; his expectation is not “one that society is prepared to recognize as ‘reasonable.’ ” Katz v. United States, 389 U.S., at 361 (Harlan, J., concurring). And it would, of course, be merely tautological to fall back on the notion that those expectations of privacy which are legitimate depend primarily on cases deciding exclusionary-rule issues in criminal cases. Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society. One of the main rights attaching to property is the right to exclude others, see W. Blackstone, Commentaries, Book 2, ch. 1, and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude. Expectations of privacy protected by the Fourth Amendment, of course, need not be based on a common-law interest in real or personal property, or on the invasion of such an interest. These ideas were rejected both in Jones, supra, and Katz, supra. But by focusing on legitimate expectations of privacy in Fourth Amendment jurisprudence, the Court has not altogether abandoned use of property concepts in determining the presence or absence of the privacy interests protected by that Amendment. No better demonstration of this proposition exists than the decision in Alderman v. United States, 394 U.S. 165 (1969), where the Court held that an individual’s property interest in his own home was so great as to allow him to object to electronic surveillance of conversations emanating from his home, even though he himself was not a party to the conversations. On the other hand, even a property interest in premises may not be sufficient to establish a legitimate expectation of privacy with respect to particular items located on the premises or activity conducted thereon. See Katz, supra, at 351; Lewis v. United States, 385 U.S. 206, 210 (1966); United States v. Lee, 274 U.S. 559, 563 (1921); Hester v. United States, 265 U.S. 57, 58-59 (1924). The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure. Rakas v. Illinois, 439 U.S. 128, 130-131 n.1 (1978). In the case at bar, the deputy prosecutor argued that the appellees lacked standing to challenge the search because they did not have “a justifiable, reasonable or legitimate expectation of privacy in the records of the telephone company.” The deputy prosecutor’s argument gave appellees notice that they were to put on proof concerning the issue of a legitimate expectation of privacy in the records of the telephone company. They offered no evidence whatsoever on the issue. Because of their failure to offer any proof on the issue, we must assume, for purposes of our review, that petitioners had no legitimate expectation of privacy in the telephone records. See Smith v. Maryland, 442 U.S. 735 (1979). The appellees have not shown that their own constitutional rights were violated in the unlawful seizure, and the resulting evidence should not be suppressed. Accordingly, we reverse and remand with instructions to deny the motion to suppress. Reversed. Purtle, J., not participating.

Per Curiam. Appellant Willie Earl Campbell was found guilty by a jury of burglary, possession of a prohibited weapon, terroristic threatening and the offense of felon in possession of a firearm. He was sentenced as a habitual offender with four prior felony convictions to consecutive sentences totaling 62 years imprisonment. Appellant’s trial attorney Gene McKissic has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating there is no merit to an appeal of appellant’s convictions and asking to be relieved as counsel. When an attorney concludes that an appeal is meritless, he is required to comply with our Rule 11 (h) which provides in pertinent part: A request to withdraw on grounds that the appeal is wholly without merit shall be accompanied by a brief referring to anything in the record that might arguably support the appeal, together with a list of all objections made by the appellant and overruled by the court and of all motions and requests made by the appellant and denied by the court, accompanied by a statement as to the reason counsel considers that the points thus raised would not arguably support the appeal. Counsel has not complied with the rule. Appellant has submitted a brief, but it does not contain a list of all objections, motions and requests made by appellant and denied by the court or a statement as to the reason the points would not arguably support an appeal. The argument portion of the brief is in fact five sentences long and ignores the issues raised in the trial court and the question of the sufficiency of the evidence to support the four convictions. It is also disturbing that the Attorney General concurs that the appellant has abstracted all objections, motions and requests denied by the court and concludes that the appellant has discussed the points “sufficiently” to apprise this Court of the lack of merit when in truth the appellant has not done so. As appellant has failed to comply with Rule 11 (h), he is instructed to submit a brief in compliance with the rule within thirty days. The Attorney General shall then file a brief in response if necessary. Motion to be relieved as counsel denied. Purtle, J., not participating.

Steele Hays, Justice. After obtaining a judgment against Imran Bohra and Rebecca Lee Bohra for $ 11,898.34, Travelodge International, Inc., filed allegations and interrogatories on May 17, 1985 and caused a writ of garnishment to be served on Handleman National Book Company, also known as Han-dleman, Inc. Handleman responded on June 5, 1985 by filing a verified “Garnishee Disclosure” stating that Handleman was indebted to Rebecca Lee Bohra in the amount of $77.02. The response was stamped in the clerk’s office with the word “Answer”, but no “filed” stamp was shown on the response and no copy of the response was sent to Travelodge or its attorney. On June 21, 1985, thinking that no answer had been filed, Travelodge took a default judgment against Handleman for $14,366.96. Some two weeks later Handleman moved to set the judgment aside and Travelodge objected. After a hearing the chancellor sustained the motion and vacated the judgment. Travelodge argues that several provisions of the Arkansas Rules of Civil Procedure were violated: Rule 5(c), which requires that all papers after the complaint required to be served on a party or his attorney shall be filed with the clerk before service or within a reasonable time thereafter, bearing the date and time of filing; ARCP 10(a), requiring a pleading to contain a caption setting forth the name of the court, the title of the action, the file number and a designation as in ARCP Rule 7(a); and Rule 5(e), requiring that a pleading shall contain a statement that it has been served upon the opposing party or his attorney. On appeal, we affirm the chancellor. Garnishment is a special statutory procedure. To the extent the garnishment procedures prescribed in Ark. Stat. Ann. §§31-501 through 31-524 (Repl. 1962 and Supp. 1985) differ from those prescribed in the Arkansas Rules of Civil Procedure, the statutes control. ARCP 81(a) provides: (a) Applicability in General. These rules shall apply to all civil proceedings cognizable in the circuit, chancery, and probate courts of this State except in those instances where a statute which creates a right, remedy or proceeding specifically provides a different procedure in which event the procedure so specified shall apply. The procedures followed by the defendant-garnishee in this case were consistent with the garnishment statutes, and were thus appropriate. The authority of a chancellor to set aside a judgment within ninety days after it is entered is found in ARCP 60(b). That rule does apply in garnishment proceedings because, in the terms of ARCP 81 (a), the garnishment statutes do not provide a specific procedure for setting such a judgment aside. Under Rule 60(b), the chancellor had the discretion to set the judgment aside. Burgess v. Burgess, 286 Ark. 497, 696 S.W.2d 312 (1985); Blissard Management & Realty, Inc. v. Kremer, 284 Ark. 136, 680 S.W.2d 694 (1984); Burns v. Madden, 271 Ark. 572, 609 S.W.2d 55 (1980). Affirmed. Purtle, J., not participating.

Jack Holt, Jr., Chief Justice. At issue in this case is who is to pay eleven different companies approximately half of a million dollars for work performed while drilling an oil well. The chancellor held the appellant, Lyle Dews, and Bruce Massey are responsible for the debt. We agree. It is from that judgment that this appeal is brought. Our jurisdiction is pursuant to Sup. Ct. R. 29(1)(c) and (d). Crystal Oil Co. owned certain leases covering lands in the southeast quarter and the north half of the southwest quarter, section 10, township 20S, range 25W, in Lafayette County, Arkansas. Crystal executed a farmout agreement of these leases with Dews on May 4, 1982. The terms of the farmout required Dews, at his expense, to drill a test well by May 15, 1982 and continue drilling to a depth sufficient to test the Cotton Valley Formation. If production was obtained, Crystal was required to assign Dews an interest in the leasehold estate. Crystal reserved an overriding royalty interest. If the first well was drilled, the agreement gave Dews the option to drill additional wells on the remaining acreage. The agreement was extended until July 15, 1982. Dews paid no consideration for this farmout. Dews then entered into an agreement with Bruce Massey whereby Massey would pay Dews $50,000 in exchange for Dews assigning to Massey his right to the leasehold estate under the Crystal-Dews agreement and subject to the terms of the Crystal-Dews agreement. Dews reserved 5% of the leasehold estate as an overriding royalty interest. Massey agreed in return to cause the well to be drilled as required by the Crystal-Dews farmout agreement. Drilling operations began prior to July 15,1982 and the well was completed as a producing well on November 14,1982. All of the claimants in this case were hired by Massey to supply labor or material for drilling the well. As a result of the drilling and completion of the well, Dews received his assignment of leases from Crystal. Dews never assigned his right to Massey pursuant to their agreement, because Massey never paid Dews the $50,000 in a manner satisfactory to Dews. Some of the various companies responsible for drilling the well filed suit against Massey in an attempt to collect the money owed to them. Dews was brought in as a party defendant and Dews then cross-claimed against all of the companies. The chancellor found that Massey did not appear and defend and was therefore in default, and that Massey and Dews were jointly and severally liable for the companies’ claims. Each company was awarded a money judgment, for a total of $519,397.60 plus interest. In addition, all but one of the companies were allowed statutory liens against the leasehold estate, and all claimants were granted constructive, equitable liens upon all funds held by any purchaser of the oil or gas produced from the well. Numerous issues are raised on appeal and on a cross-appeal filed by one of the companies. The chancellor based Dews’ liability for the money owed on four alternative grounds. We agree with one of the reasons, therefore, the chancellor is affirmed as to the money judgment. I. QUASI-CONTRACT In holding Dews liable under a quasi-contract theory, the chancellor found that the claimants provided valuable services and materials to the well, which services and materials were anticipated by the parties and were necessary to the completion of the well. Since Dews claims ownership of the well by virtue of the assignment from Crystal, and has accepted the well and the work performed by the claimants, the court held Dews would be unjustly enriched if he were not required to pay for the work. Quasi-contracts, or contracts implied in law, are legal fictions, created by the law to do justice. They do not rest upon the express or implied assent of the parties. Rather, the underlying principle is that one person should not unjustly enrich himself at the expense of another. Dunn v. Phoenix Village, Inc., 213 F. Supp. 936 (W.D. Ark. 1963); Brill, Arkansas Law of Damages § 15-3 (1984). To find unjust enrichment, a party must have received something of value, to which he was not entitled and which he must restore. There must also be some operative act, intent, or situation to make the enrichment unjust and compensable. Brill, supra; Frigillana v. Frigillana, 266 Ark. 296, 584 S.W.2d 30 (1979). The basis for recovery under this theory is the benefit that the party has received and it is restitutionary in nature. Brill, supra. Recovery may be had under quasi-contract where services have been performed, whether requested or not, which have benefited a party. Dobbs, Handbook on the Law of Remedies, § 4.2 (1973). Courts, however, will only imply a promise to pay for services where they were rendered in such circumstances as authorized the party performing them to entertain a reasonable expectation of their payment by the party beneficiary. Dunn, supra. Quasi-contracts rest on the equitable principle that “whatsoever it is certain that a man ought to do, that the law supposes him to have promised to do . . . Where a party has in good faith rendered a service, not illegal or contrary to public policy, and the other party has accepted and used the service, the former may recover.” Dunn, supra. That is the situation we are confronted with here. The appellees provided valuable services and materials for the well, without which the well never would have been drilled. Because the well was drilled and is producing, Dews received his assignment. Dews was undoubtedly enriched by appellees’ actions. As to the unjust aspect, the testimony at the trial demonstrated that Dews was aware that the companies were rendering valuable services to the well. Because Massey never paid Dews the $50,000 pursuant to their agreement, Dews at all times knew that Massey was in breach. Since Massey’s authority to drill the well stemmed from the same agreement he had breached, Dews could not stand by and watch the companies perform services based on their agreements with Massey. Dews testified he decided to let Massey continue drilling in the hopes that he would finish the well. By making a conscious decision not to inform the companies that Massey was in breach of their agreement, and would therefore never receive the assignment, Dews allowed the debts to be incurred. He cannot permit such an injustice and still receive the benefit of the services rendered. Dews admitted as much during the course of the trial when he testified as follows: Q: If the situation occurs what I just said and you don’t have to pay any lien claimants any money because you didn’t contract with them according to your statement and you don’t have to pay Mr. Massey because he is in breach of your contract and you have got an assignment from Crystal and the well is in [your] name, then you just get a freefall in this whole thing, is that just? Is that fair? For you to get something when you have got nothing in it except an assignment? Dews: I would say if I am paid I feel like. . . Q: That is not my question. Dews: No sir, that is not fair. The appellee companies, in good faith, performed services on the well. As the owner of the majority of the working interest in the producing well, Dews has accepted and used their services. The companies, therefore may recover from him. II. STATUTORY AND EQUITABLE LIENS The chancellor imposed statutory liens pursuant to Ark. Stat. Ann. § § 51 -701 — 51-714 (Repl. 1971) for all but one of the claimants. The court found that those claimants filed affidavits for lien as required by Arkansas law within the time and manner required by law, adequately describing the land, and attaching statements of account to the liens. We disagree and dissolve the liens. Arkansas Stat. Ann. § 51-608.1 (Supp. 1985) provides that no lien may be acquired under the applicable statutes unless the owner or his authorized agent has received a copy of notice of an intent to file a lien prior to the furnishing of the material. All the claimants contracted directly with Massey, who was neither an owner of the leasehold, nor an authorized agent of the owner. At all times while work was being performed, Crystal was the owner of the leasehold. No notice was ever given to Crystal or to Crystal’s authorized agent, Dews. Our lien statutes are strictly construed since they provide an extraordinary remedy. Valley Metal Works, Inc. v. A.O. Smith-Inland, Inc., 264 Ark. 341, 572 S.W.2d 138 (1978). The liens, therefore, were not properly perfected. The equitable liens upon all funds held by any purchaser of the oil or gas produced from the well also must fail. At the time the work was performed by the claimants, Dews did not have an interest in the production from the well. Now that the well is completed and is producing, Dews only receives a percentage of the profits, with the remainder going to Crystal to satisfy its interest in the well. To allow the claimants to impress a lien upon all of the funds would be, in effect, to grant them a greater interest in the well than that owned by Dews. Since a creditor with a lien upon property is entitled at a proper time to have the property sold and the proceeds used for payment of the debt, Crystal, through no fault of its own, conceivably could lose its right to profits from a producing well, should it be sold to satisfy Dews’ debts. Furthermore, the Crystal-Dews agreement specifically provided that Dews would hold Crystal harmless from all losses and claims arising out of its operations on any well. The validity of this agreement has not been challenged, nor has Crystal been made a party to this action. Crystal’s interest in the well, therefore, is protected by its contract with Dews. Accordingly, we reverse the award of equitable liens. III. DEFAULT JUDGMENTS . Dews filed a cross-complaint against two of the claimants, Decca Drilling Co. and Tri-State, on April 14, 1983. The companies were served on April 14 and April 19, respectively. Decca answered on May 23,1983 (39 days later) and Tri-State answered on January 11, 1984 (266 days later). Dews filed motions to strike the answers and for default judgments since they were not filed within 30 days of service. Ark. R. Civ. P. Rule 12(a). The trial court denied the motions stating that the answers filed by the other claimants inured to their benefit. Dews claims he is entitled to a defaült judgment as to those two companies. The trial court was following the Court of Appeals’ decision in Firestone Tire & Rubber Co. v. Little, 269 Ark. 636, 599 S.W.2d 756 (Ark. App. 1980) which held that a default judgment should not be granted based on an untimely answer when an action is against several defendants jointly and the defense interposed by an answering defendant is not personal to him but is common to himself and non-answering defendants. Here, all of the claimants are seeking compensation from Dews for work performed on the same well and under the same theories. An answer filed by one party would be common to all parties in a similar position. The trial court’s ruling was correct. IV. WINGO ACT For his final point, Dews claims that the Wingo Act, Ark. Stat. Ann. §§ 64-1201 — 64-1202 (Repl. 1980) was not complied with by four of the claimants and their claims were therefore barred. The act provides that every foreign corporation doing business in this state shall file its articles of incorporation in the secretary of state’s office. § 64-1201. Failure to comply with this provision by a company who does business in this state prohibits the company from making any contract in this state which can be enforced by it in law or equity. § 64-1202. Four of the claimants did not register with the secretary of state. Nevertheless, the judgments against Dews on behalf of these companies are valid. The Wingo Act prevents an unregistered foreign corporation from enforcing its contracts. The relief being awarded the appellees, however, is restitutionary in nature and is based upon the theory of quasi-contract. Any contract that might have existed in this case was between the companies and Massey, not Dews. Here, damages are being awarded against Dews because he is the party that has been unjustly enriched by the services performed by appellees. Such a recovery when based upon unjust enrichment does not involve the enforcement of a contract. Dobbs, Handbook on the Law of Remedies, § 4.2 p. 237 (1973). This parallels our previous cases where we have held that an unregistered or unlicensed foreign corporation may bring suit to protect its property as long as the suit does not unavoidably involve the enforcement of a prohibited contract. See, e.g., Ark. Airmotive Div. of Currey Aerial Sprayers, Inc. v. Ark. Aviation Sales, Inc., 232 Ark. 354, 335 S.W.2d 813 (1960). A corporation’s failure to qualify to do business should not enable third persons to misappropriate its property with impunity. Id. Accordingly, such foreign corporations are permitted to maintain restitution suits, Id.; C.B. International, Inc. v. Cook, 659 F.2d 862 (8th Cir. 1981), and appellees are entitled to judgment on the theory of quasi-contract. The Wingo Act does not apply under these circumstances. V. CROSS-APPEAL Analytical Logging, Inc., a Louisiana company hired to do the mudlogging on the well, raises three points in its cross-appeal. First, it argues that the contract was entered into in Louisiana and that, therefore, matters bearing on the obligations of the contract are to be determined by Louisiana law. Analytical’s claim in this lawsuit is based on the court’s finding that a quasi-contract existed between the claimants and Dews. No express contract was entered into by Dews with any of the companies. Since the acts upon which the finding of quasi-contract is based took place in Arkansas, the law of this state governs. Analytical’s second argument concerns attorney’s fees and need not be addressed since it is based on a Louisiana statute. For its final point on cross-appeal, Analytical seeks punitive damages for Dews’ willful or malicious conduct. Punitive damages are not ordinarily recoverable for breach of contract and to support such a claim there must be a showing of a willful or malicious act in connection with a contract. McClellan v. Brown, 276 Ark. 28, 632 S.W.2d 406 (1982), rehearing denied. A bare allegation of fraud which results in monetary loss does not justify punitive damages. Id. We do not find that Dews’ conduct rises to the level of willful .or malicious and, therefore, an award of punitive damages is not justified. Affirmed in part; reversed in part. Purtle, J., not participating.

David Newbern, Justice. The appellant pleaded guilty to arson and was convicted. He contends the court erred in refusing to set aside his guilty plea and grant a new trial because he did not receive the concessions he was promised in exchange for his plea. We find no error and thus affirm. The appellant was first tried and convicted by a jury. He filed a notice of appeal. Then he and the state agreed that the notice of appeal would be withdrawn and the judgment amended to provide the ten-year sentence would be served concurrently with a sentence of a federal court to which the appellant was subject. The judgment was amended in accordance with the agreement, and the appellant withdrew his notice of appeal. The Arkansas Department of Correction declined to release the appellant to federal authorities. In an order to the Department of Correction to release the appellant to the federal authorities, the court made it clear the essence of the agreement between the appellant and the state, which the court was trying to implement, was that the appellant would serve his federal sentence first and be given credit for it against his ten-year Arkansas sentence for arson. Ultimately the appellant was given a new trial because the circuit court found his right to due process under the Arkansas and U. S. constitutions had been violated as he had not been released to the federal authorities to begin serving his federal sentence for which he was to have been given credit against his Arkansas sentence. At the new trial, the appellant pleaded guilty. His plea was negotiated on the basis of the same agreement, i.e., that his state sentence would run concurrently with his federal sentence. The judgment remanded the appellant to the Nevada County sheriff for delivery to the Arkansas Department of Correction. The appellant then sought to withdraw his guilty plea pursuant to Ark. R. Crim. P. 26.1, stating that a manifest injustice had occurred because the state “has not, cannot, and/or will not honor its plea agreement.” In his order refusing to allow withdrawal of the guilty plea, the court recited that “[t]he Arkansas Department of Corrections is now ready and willing to deliver the Defendant to the Federal authorities.” Apparently the only reason the appellant is not receiving the benefit of his plea bargain is that the federal authorities refuse to take him. Both the court and the prosecutor have striven to see to it the agreement is carried out, but they are powerless to do so in view of the refusal of the federal authorities to cooperate by allowing the appellant to begin serving his federal sentence and thus receive credit for it against his state sentence. We agree with the frustrated trial court that he can do no more. Rule 26.1 (a) says withdrawal of a guilty plea may be allowed to correct a manifest injustice. Rule 26.1(c) provides in pertinent part: Withdrawal of a plea of guilty or nolo contendere shall be deemed to be necessary to correct a manifest injustice if the defendant proves to the satisfaction of the court that: (iv) he did not receive the charge or sentence concessions contemplated by a plea agreement and the prosecuting attorney failed to seek or not to oppose the concessions as promised in the plea agreement While the appellant has not yet received the benefit he anticipated from his bargain, there is no evidence or even suggestion that the prosecutor failed to seek the agreed concession. As the rule implies, no accused is guaranteed he will actually receive the benefit of his plea bargain, but he is guaranteed the prosecutor will seek or not oppose the concessions promised. The appellant cites only Zoller v. State, 282 Ark. 380, 669 S.W.2d 434 (1984), as a case interpreting Rule 26.1 in his favor. That case is not controlling because there we found it “apparent that the prosecuting attorney failed to seek the first offender treatment the appellant was promised.” 282 Ark. at 385, 669 S.W.2d at 436. The appellant has received cooperation in full from the prosecutor and the trial court. Should federal authorities relent, he surely will receive credit for time served there on his Arkansas sentence. The appellant gambled on the cooperation of the federal authorities and lost. There is no “manifest injustice” here, as defined in Rule 26.1, thus the trial court correctly ruled the appellant was not entitled to withdraw his guilty plea. Affirmed. Purtle, J., not participating.

Per Curiam. The petitioner asks for a writ of certiorari to the circuit court to deliver an accurate transcript in this case. Evidently three different reporters were used at different times. Since filing the petition, the record has been tendered and the issues presented are admittedly moot except those pertaining to the transcript prepared by Reporter James Taylor. That portion recorded by James Taylor is challenged for two reasons: it is inaccurate and Taylor refuses to certify the transcript because he is no longer a reporter. Evidently Taylor was the duly certified court reporter for this circuit court at the time he acted. The fact that he is no longer certified is incidental to his duty. If the trial court finds the transcript accurate, Taylor shall certify that portion he prepared as accurate and sign it. He may reflect the fact that he is no longer a reporter; but he was a certified reporter then and cannot avoid his duty to prepare and deliver an accurate transcript. The circuit court has the inherent authority to order that reporter to prepare an accurate transcript. If he will not, the power of contempt proceeding is available; if he cannot prepare an accurate transcript because of incompetence, the power to order it done at the reporter’s expense is available. The matter is remanded for the circuit court to take whatever action is necessary to resolve the questions remaining regarding the record. Purtle, J., not participating.

David Newbern, Justice. The appellant was the plaintiff below. She was injured in an accident while she was a passenger in a bus operated by Mr. Godley, an employee of the appellee. The jury returned a verdict for the appellee. The appellant’s only point on appeal is: “The evidence was sufficient to support a verdict for the plaintiff (appellant).” However, the argument portion of the appellant’s brief shows her point to be that the verdict was the result of passion or prejudice. We must affirm. The evidence before the jury on the issue of liability consisted of testimony from the state policeman who investigated the accident and other persons who were passengers at the time of the wreck as well as the deposition of Mr. Godley, who was deceased at the time of the trial. The evidence showed that the bus left the road after another vehicle had passed and cut in front of the bus in heavy traffic at a place where the highway changed from four to two lanes. The bus landed upright, after going over a traffic island and an embankment, and all but four of the twenty-six passengers were injured. All of the other passengers who testified said or implied the bus was traveling too fast for conditions. Mr. Godley’s deposition, however, conflicted with that testimony, and he concluded the sole cause of the accident was his attempt to avoid colliding with other vehicles after the driver of the passing car had cut in front of him and slowed down sharply, forcing him off the road. He testified he was driving within the speed limit. There was evidence that it was a standard procedure for the appellee to have a bus driver involved in an accident hand “courtesy cards” to the passengers on which the passengers could indicate who was at fault in the accident. Without objection, such cards, allegedly executed by two of the three passenger witnesses who testified for the appellant, were admitted into evidence. They showed the fault causing the accident to have been that of the “other driver.” The appellant recognizes we will not overturn a jury verdict unless it is clearly the result of passion or prejudice. AAA T.V. & Stereo Rentals, Inc. v. Crawley, 284 Ark. 83, 679 S.W.2d 190 (1984). As bases of prejudice, the appellant mentions (1) the sympathy of the jury for the reputation of the deceased bus driver, (2) the fact that the jury knew the other passengers who testified also had claims against the appellee, and (3) the fact that the appellant’s doctor’s testimony was presented by deposition and perhaps was not understood by the jury. It is enough to say that the appellant presented no evidence or credible argument that any of these factors in any way influenced the jury unfairly. No issue was raised in any way in the trial court about any of the items mentioned being prejudicial, and we do not see how any legitimate complaint about them could have been made, as they all go merely to the weight to be given the witnesses’ testimony or the manner of its presentation and have nothing to do with the kind of unfair prejudice we might find sufficient to overturn a jury verdict. We review the evidence in the light most favorable to the verdict, and where there is substantial evidence to support a verdict either for the appellant or for the appellee we will not disturb the verdict. Petrus Chrysler-Plymouth v. Davis, 283 Ark. 172, 671 S.W.2d 749 (1984); MFA Mutual Insurance Co. v. Keller, 274 Ark. 281, 623 S.W.2d 841 (1981). Affirmed. Purtle, J., not participating.

Darrell Hickman, Justice. The decision is reversed because this is a suit against the state, and the chancery court had no jurisdiction. Valeo contracted with the Arkansas Highway Commission to improve about one mile of Highway 71 in Scott County. The contract called for the removal of several existing bridge structures. After Valeo obtained the contract, a dispute arose regarding the removal of two bridges, one over Fouche LaFave River and the other over Fouche LaFave Relief. Valeo insisted it was not in the contract to remove these two bridges. The chief engineer for the Highway Commission ruled pursuant to the contract, that Valeo had to remove the bridges. Valeo filed a suit in the Pulaski County Chancery Court against the Arkansas Highway Commission’s chief engineer, a former member of the commission and the director of the Arkansas Highway and Transportation Department to enjoin the Highway Commission from requiring the removal of the bridges. Contemporaneously, a claim was filed by Valeo with the state’s Claims Commission for compensation for the work. The chancellor found the contract ambiguous regarding the two bridges, ruled that the chief engineer was arbitrary in resolving the matter against Valeo and issued the injunction. We only need to address the question of jurisdiction. This was simply a suit against the state, prohibited by the Ark. Const. Art. 5 § 20, which provides: “The State of Arkansas shall never be made defendant in any of her courts.” The fact that the state Highway Department director, commission board members, and chief engineer were named parties instead of the state itself is not determinative of whether the state is the defendant. We look beyond the named parties to see if the real claim is against the state. McCain v. Crossett Timber Co., 206 Ark. 51, 174 S.W.2d 114 (1943). Obviously, the issue here is the business of the state and the defendants, though individuals, were named in their official capacities. Another factor is whether the suit directly or indirectly coerces the state. Watson v. Dodge, 187 Ark. 1055, 63 S.W.2d 993 (1933). This j udgment directly orders the state not to enforce its contract. Exceptions to the rule prohibiting suits against the state are few. Two instances which are not considered suits against the state are when an agency or officer acts illegally or ultra vires, which means beyond the agency’s or officer’s legal power or authority. Federal Compress & Warehouse Co. v. Call, 221 Ark. 537, 254 S.W.2d 319 (1953); Ark. Game & Fish Comm. v. Eubank, 256 Ark. 930, 512 S.W.2d 540 (1974). Condemnation cases are also not considered suits against the state. Ark. Highway Comm. v. Flake, 254 Ark. 624, 495 S.W.2d 855 (1973). This suit is not within any of these or other exceptions; it is simply a suit directly against the state which is prohibited by the constitution. Reversed and dismissed. Purtle, J., not participating.

David Newbern, Justice. The question in this case is whether Ark. Stat. Ann. § 37-222 (Supp. 1985) permits filing a claim in an Arkansas court more than one year after a “nonsuit suffered” in federal court was affirmed, and rehearing denied, by the United States Circuit Court of Appeals but less than one year after certiorari was denied in the case by the U. S. Supreme Court. We hold the action may be maintained and thus we reverse the trial court’s decision that the Arkansas filing came too late. The appellant, a long-time member of the appellee hospital’s staff, was placed on a one-year probation as a staff member resulting from a hospital decision reached in a disciplinary hearing. In 1981 the appellant filed an action in the U. S. District Court alleging he was injured by the imposition of the probation and was thus entitled to recover for violation of his civil rights pursuant to 42 U.S.C. § 1983 as well as pursuant to various pendant state claims arising under Arkansas law. Finding a lack of state action to support the § 1983 claim, and thus necessary failure of federal jurisdiction of the pendant state claims, the district court dismissed the action. The Eighth U. S. Circuit Court of Appeals affirmed on August 9, 1983, and denied rehearing September 16, 1983. The appellant sought a writ of certiorari from the U. S. Supreme Court, and it was denied February 21, 1984. The appellant filed his state court action, based on the same claims he pursued in the federal court, on December 19, 1984. The statutes of limitations applicable to the appellant’s claims had not run when he began his federal court actions. By the time the federal proceedings came to an end, however, the statutes of limitations had run, and thus the appellant’s only possible basis for arguing a timely filing in the Crittenden County Circuit court is § 37-222 which provides: If any action shall be commenced within the time respectively prescribed in this Act, or in Act 511 of 1979 [§§ 34-2801 — 34-2807], or in Act 709 of 1979 [ §§ 34-2613 — 2620], or in any other Act, and the plaintiff therein suffer [suffers] a nonsuit, or after a verdict for him the judgment be arrested, or after judgment for him the same be reversed on appeal or writ of error, such plaintiff may commence a new action within one (1) year after such nonsuit suffered or judgment arrested or reversed. Provided, if after judgment for plaintiff the same be reversed on appeal or writ of error, and said cause is remanded for another trial, the mandate shall be taken out and filed in the court from which the appeal is taken within one (1) year from rendition of the judgment of reversal otherwise, said cause shall be forever barred; and if the cause of such action survive to his heirs or survive to his executors or administrators; they may in like manner commence a new action or take out a mandate within the time allowed such plaintiff. The appellees argue the case in federal court ended when the court of appeals affirmed the district court, and certainly no later than the denial of rehearing. The appellant contends he still had a chance for federal relief until certiorari was denied, and thus his state court filing was within one year of his having suffered nonsuit in the federal courts. Our statute and its predecessors have a long history of liberal interpretation. In State Bank v. Magness, 11 Ark. 343 (1850), this court described the purpose of the statute as follows: The next alleged variance is that the judgment in the replication is described as a judgment of non-suit, whilst that offered in evidence is a judgment of dismissal. This involves a construction of the act under which the plaintiff claims to except his case of the general provisions of the limitation law. The legislature has said that when suit shall be commenced and the plaintiff shall suffer a non-suit he may renew his action within twelve months from the time of such non-suit. Was it the object of the legislature by this act to favor suitors who elected to take a non-suit to the exclusion of suitors, who for other cause should have their suits dismissed from court without having had their rights litigated and who might as well renew their actions as if non-suit had been taken? If so it is difficult to perceive from what motive or consideration. On the other hand it is quite apparent that the intention of the framers of the act was to secure that class of suitors from loss who, from causes incident to the administration of the law, are compelled to abandon their present action, whether by their own act or the act of the court, when either would leave them a cause of action, yet undetermined, by giving them a reasonable time in which to renew such action. Other expansive interpretations of the statute, not directly relevant here, include: Eades v. Joslin, 219 Ark. 688, 244 S.W.2d 623 (1951); Fox v. Penson, 182 Ark. 936, 34 S.W.2d 459 (1930); Walker v. Peay, 22 Ark. 103 (1860); and State Bank v. Fowler and Pike, 14 Ark. 159 (1853). In Young v. Garrett, 212 Ark. 693, 208 S.W.2d 189 (1948), the question was whether the nonsuit was suffered when a U. S. court of appeals affirmed and denied rehearing adversely to the plaintiff, and we held that it was. There, however, the plaintiff did not seek a writ of certiorari, but succeeded in getting the circuit court to remand the case to the district court to permit him to amend his pleading. The district court held it lacked the authority to permit amendment, and the circuit court affirmed that holding as well. We said the plaintiff could not bring his action in an Arkansas court because more than a year had elapsed since the first affirmance. We pointed out that everything done in the federal courts after the first affirmance was a nullity and said: But wording of the Act does not justify belief that it was the legislative purpose to so liberalize this gratuity that irrespective of adverse judicial decisions in a given case that the controversy in that jurisdiction had been terminated, a period of one year would yet remain while courts were reaffirming what had already been explicity held. That language does not apply here. The claimant before us now has not sought or obtained a redetermination in the U. S. district court or court of appeals other than by orderly procedural steps. We can hardly say his petition to the U. S. Supreme Court was a nullity of the sort we encountered in Young v. Garrett, supra. A similar situation arose in Wheeler v. Wallingsford, 229 Ark. 576, 317 S.W.2d 153 (1958), where the plaintiff filed a transitory action in Pulaski County but served the defendant in Union County. This court held the service was improper and issued a writ of prohibition to the Pulaski County Circuit Court. Some six months after prohibition was ordered, the plaintiff “took a nonsuit” in his Pulaski County action. He contended that although the statute of limitations had run, he had one year from the time he was granted “nonsuit” to bring his action in accordance with § 37-222. We held the year began to run when the writ of prohibition issued. We said the writ terminated the Pulaski County action “just as effectively as it could be done.” Thus, there was no action remaining in which a nonsuit could legitimately be taken. At that time it was held that an action was not commenced until the complaint was filed and the summons placed in the hands of the proper sheriff. Goodyear Tire & Rubber Co. v. Meyer, 209 Ark. 383, 191 S.W.2d 826 (1945). Cf. Ark. R. Civ. P. 3. Therefore, no action could have been commenced in Pulaski County within the statute of limitations or within the one-year period prescribed in § 37-222. The plaintiffs “nonsuit” was, as the attempted amendment in Youngv. Garrett, supra, a nullity. It was taken in a nonexistent lawsuit. We are aware of holdings that a U. S. circuit court of appeals affirmance is the final result when there is no right of appeal to the U. S. Supreme Court. See, e.g., Glick v. Ballentine Products, 397 F.2d 590 (8th Cir. 1968). However, if certiorari had been granted by the U. S. Supreme Court in this case, all must concede the federal court action would not have been over. Given the remedial nature of § 37-222 and our liberal previous interpretations of it, we will not require that a litigant who is seeking certiorari from the U. S. Supreme Court file an action in one of our courts while his petition is pending just to preserve his right under § 37-222. The petition for certiorari to the U. S. Supreme Court must be filed within ninety days after entry of judgment or decree. 28 U.S.C. § 2101(c). Therefore, rather than giving a claimant an open-ended method of preserving the one year to which he may be entitled under § 37-222, this decision permits him to take advantage of his ultimate recourse in the federal system before concluding he has indeed “suffered non-suit” and initiating the one-year period within which he must file his claim in an Arkansas court or forever lose the right to have the merits of it adjudicated here. The trial court’s decision dismissing the appellant’s claim pursuant to Ark. R. Civ. P. 12(b)(6) is reversed, and the case is remanded for further proceedings. Reversed and remanded. Purtle, J., not participating.

Darrell Hickman, Justice. When the police broke into the apartment of Toni Needham in Fort Smith, Arkansas, an empty box of freezer bags came flying down the stairs and someone was heard running above. The officers went upstairs and found appellant Santiago Sanchez and Bernie Netz in a bedroom with a quantity of illegal drugs and drug paraphernalia. This is what they found: a set of scales and a bowl with a substance in it identified as methamphetamine, a controlled substance, were found on a table. Another dish with methamphetamine was found on a mattress on the floor. In a coat, lying on the bed, was a .32 caliber semi-automatic pistol with seven live rounds along with a syringe in a plastic bag. The plastic bag had a residue of ephedrine, a chemical commonly used to dilute controlled substances. A box of freezer bags was on the floor. There was a mirror used as a tabletop on which were three razor blades. The state elicited testimony that razor blades were used to line out drugs for snorting or putting into syringes. Searching further, the officers found two syringes in an adjoining bathroom. In another bedroom they discovered appellant Gary Piercefield hiding in a closet. Toni Needham was also in the room. There were no drugs or paraphernalia found in this room. Both Sanchez and Piercefield were convicted of possession of a controlled substance with intent to sell and sentenced as habitual criminals: Sanchez to 35 years, Piercefield to 22 years. On appeal Sanchez raises three arguments: the trial court wrongly refused to disclose the name of the confidential informant who supplied the information for the search warrant; the trial court should have admitted evidence that Toni Needham and Bernie Netz pleaded guilty; and there was not substantial evidence to support his conviction. All are meritless. Piercefield only argues lack of substantial evidence. His argument is convincing and requires a reversal and dismissal of his conviction. The state proceeded under the theory that both Piercefield and Sanchez were in constructive possession of the drugs. Possession may be constructive when one controls a substance or has the right to control it. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982). Actual physical possession at the time of the arrest is not required. Cary v. State, 259 Ark. 510, 534 S.W.2d 230 (1976). In Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980), we quoted with approval the following definition of substantial evidence: Substantial evidence has been defined as ‘evidence that 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. . .’ In determining whether the evidence is substantial, we consider it in a light most favorable to the state. Westbrook v. State, 286 Ark. 192, 691 S.W.2d 123 (1985); Cary v. State, supra. First, Piercefield’s case: the apartment was not Piercefield’s, and there is no evidence that he had any connection with it. One officer testified that he interviewed Piercefield and asked him why his car smelled like ether. Piercefield said he had gone to Oklahoma with a third party to get a can of ether. An empty can was found on the premises but was not seized. It was established that ether was used to clean methamphetamine. Piercefield was found on the premises but was not where any drugs or paraphernalia were. Nothing was found on or about him that might indicate possession. See Ravalette v. State, 264 Ark. 344, 571 S.W.2d 433 (1978). The jury could only have speculated that Piercefield possessed these drugs because the state did not prove it. His conviction is reversed and dismissed. The facts are entirely different concerning Sanchez. All evidence indicates he was in control of these drugs and paraphernalia; he was surrounded by them. Sanchez had a gun on him; another was found in a coat nearby. Shells were found in Sanchez’s car which matched the shells in the pistol in the coat. As the police entered the room, Sanchez was rising from the table where the scales and a bowl of methamphetamine were found. Nearby were methamphetamine in a dish on a mattress, ephedrine in a plastic bag along with a syringe, and freezer bags. The tabletop mirror and razor blades were next to where Sanchez was sitting. The jury could have easily concluded that Sanchez was sitting at the table measuring out the drug. The evidence is too strong to support his story that he was a casual visitor. The jury had substantial evidence from which to convict Sanchez. Sanchez also argues that there was not enough evidence to convict him of intent to deliver. Ark. Stat. Ann. § 82-2617(d) (Supp. 1985) provides that possession of 200 milligrams of a stimulant creates a rebuttable presumption that possession is with intent to deliver. Sanchez possessed 1.26 grams of methamphetamine. Sanchez’s other arguments are easily answered. There was no evidence that Sanchez needed to know the name of the confidential informant to prepare his defense. The informant was not present when the search was made nor was Sanchez charged with a sale that the informant witnessed. Under the facts of this case, disclosure was not required. Jackson v. State, 283 Ark. 301, 675 S.W.2d 820 (1984). See also Toland v. State, 285 Ark. 415, 688 S.W.2d 718 (1985); and Bennett v. State, 252 Ark. 128, 477 S.W.2d 497 (1972). Sufficient reliability of the informant was shown. Thompson v. State, 280 Ark. 265, 658 S.W.2d 350 (1983); Illinois v. Gates, 103 S.Ct. 2317 (1983). Sanchez’s argument that the trial court should have allowed the defense to prove that Netz and Needham pleaded guilty is not supported by any authority. Furthermore he was allowed to show that they were both serving sentences for their involvement; therefore, there was no abuse of discretion in excluding this evidence. Affirmed as to Sanchez. Reversed and dismissed as to Piercefield, Purtle, J., not participating.

George Rose Smith, Justice. This is a taxpayer’s suit brought by the appellee for a declaratory judgment to determine the validity of tax-exempt bonds to be issued by the Fort Smith Tourism Facilities Board for the construction of a nine-story 260-room hotel in downtown Fort Smith. Although the building is to be 100% financed by the bond issue, it will be a privately owned hotel, operated for profit. Apparently construction is under way, with the opening of the hotel scheduled for the spring of 1986. John Q. Hammonds, the chief developer of the project, testified that the hotel will be completed with or without public financing. After hearing a great deal of testimony the chancellor held that the bonds are invalid, as not being issued for a public purpose. The appeal comes to this court under Rule 29(l)(c). We need not discuss the issue of public purpose, for our long standing rule is to affirm the trial court’s decision if it reached the right result, although a different reason for the decision may have been given. Ratliff v. Moss, 284 Ark. 16, 678 S.W.2d 369 (1984). Moreover, when a party to a suit is representing the public, as in this taxpayer’s suit, it is our practice to consider all essential questions on their merits. Morris v. Torch Club, 278 Ark. 283, 644 S.W.2d 945 (1983). In another opinion handed down today we are holding that a municipal bond issue such as this one is not valid unless it has been approved at an election. City of Hot Springs v. Creviston, 288 Ark. 286, 705 S.W.2d 415 (1986). There having been no election in the present case, the trial court’s decision was right and must be upheld for the reasons given in the Hot Springs case. Affirmed. Purtle, J., not participating. Hays, J., dissents.

David Newbern, Justice. The principal question presented by the appellants is whether a covenant not to compete, contained in a contract for the sale of a business, is unreasonable due to its length of duration and thus unenforceable. The chancellor upheld the provision, and we agree that it was not of an unreasonable duration under the circumstances presented here. The appellants further contend the chancellor erred in awarding an injunction enforcing the covenant against some of them who were not parties to the contract which contained the covenant. We agree with the appellants on this point and thus modify the injunction. We also agree with the appellants’ argument that the chancellor erred in awarding damages for breach of the covenant to the extent the damages were to accrue after the effective date of the injunction, and we reduce the damages accordingly. On cross appeal, it is contended the chancellor erred in computing the damages for breach of the covenant. If there was error, it favored the appellee and was not the error argued by the appellee. Therefore, we affirm on cross appeal. We will not address the error favoring the appellee because the appellants did not raise any question of the amount of damages in their principal brief on appeal. The appellants argue incorrectness of the court’s damages calculation only in their reply brief responding to the cross appeal. Appellants may not raise an error for the first time in the reply brief, as the appellee has no opportunity to respond. Thus we will not consider it. Meyers v. Muuss, 281 Ark. 188, 662 S.W.2d 805 (1984). In 1972 Hyde Vending Co., Inc., sold its food and drink vending business to C M Vending Company, Inc. The Hyde company retained its music and some of its cigarette vending operation, but it transferred to C M its food and drink vending machines, trucks, and other equipment, all of which was listed in an “exhibit” to the contract, and exclusive vending agreements in certain listed industrial and other plant locations. The covenant not to compete, which was drafted by Hyde’s attorneys, was as follows: Hyde and each of its stockholders hereby agrees that from and after the closing none of them will, without C M’s prior written consent, directly or indirectly own, manage, operate, join, control, or participate in the ownership, management, operation, or control of, or be connected in any manner with, any business, either directly or indirectly in competition with C M, or become interested in any competitor of C M, within a period of five (5) years after payment in full of the purchase price as herein provided and within a radius of fifty miles of the City of Russellville, Arkansas; provided, however, that Hyde shall have the right to maintain certain cigarette vending machines and certain coin operated record playing music machines as specifically listed and described on Exhibit “C” attached hereto, and that it and its stockholders may, as a corporation or as individuals, enter into the music vending machine business, only, without being in violation of this provision; and provided further, that C M will not, during the same period herein enter into the music vending machine business; and, provided further, that either of the parties hereto may in writing waive any portion or all of this particular covenant not to compete. The stockholders in the Hyde company were Bert Hyde and Nancy Hyde. Their son, David Hyde, was not a stockholder at the time the covenant not to compete was entered. He acquired some shares in December, 1978, and held them only about six months. Thus, David Hyde did not own shares in the Hyde company at the time the covenant was alleged to have been breached. The C M Company successfully bid for the exclusive food and beverage vending contract at the Arkansas Nuclear One (ANO) plant in 1979. That contract expired in 1984 at which time it was obtained by Valley Vending, Inc., which was owned by David Hyde, Donna Walker, Bert Lynch and Randy Talkington. The evidence is undisputed that Bert Hyde made unsecured loans to Valley Vending and advised and assisted the business in other ways which caused the chancellor to hold the covenant not to compete had been breached. The appellants do not question the sufficiency of the evidence to establish breach of the covenant, assuming its validity. 1. Reasonableness of the Covenant The appellants do not contest the reasonableness of the geographical coverage of the covenant. Rather they say only it is too long in duration. It began to run at the closing of the sale of the food and beverage business of Hyde to C M, and it was to continue until five years after C M had paid Hyde in full. Given the contract’s provision that C M would not be allowed to pay the debt completely until eight years after closing, the minimum duration of the covenant was thirteen years. As full payment was required within ten years, the covenant had a maximum duration of fifteen years. It thus was within the power of C M to extend the duration of the covenant, as it did in this case, by two years. We note that as the covenant was mutual in nature, the extension not only gave C M additional protection with respect to food and beverage vending, but it extended the protection afforded to Hyde with respect to music and cigarette vending. A contract in restraint of trade, such as a covenant not to compete, is not invalid if it is reasonable with respect to time and place. Bloom v. Home Insurance Agency, 91 Ark. 367, 121 S.W. 293 (1909); Webster v. Williams, 62 Ark. 101, 34 S.W. 537 (1896). The reasonableness of duration of a covenant not to compete after sale of a business is to be judged in the light of accompanying circumstances. Madison Bank & Trust v. First National Bank of Huntsville, 276 Ark. 405, 635 S.W.2d 268 (1982). This court has upheld such covenants lasting five years, Bledsoe v. Carpenter, 160 Ark. 349, 254 S.W. 677 (1923); ten years, Madison Bank & Trust v. First National Bank of Huntsville, supra; twenty years, Robins v. Plant, 174 Ark. 639, 297 S.W. 1027 (1927); and without time limit, Wright v. Marshall, 182 Ark. 890, 33 S.W.2d 43 (1930); Hultsman v. Carroll, 177 Ark. 432, 6 S.W.2d 551 (1928). While the issue in Wright v. Marshall, supra, was apparently not the duration of the covenant, we recited the familiar rule that: [s]uch contracts are intended to secure to the purchaser the good will of the business; and, as a guaranty, the vendor agrees not to engage in like business at that place. The courts recognize that in such cases the vendor has received an equivalent to abstain from business at the place where it was formerly conducted. [182 Ark. at 891-892, 33 S.W.2d at 44.] The only cases cited by the appellant in which we have refused to uphold covenants not to compete have been employment contracts to which we apply a stricter standard. See Madison Bank & Trust v. First National Bank of Hunstville, supra. The seller of a business who finances the sale by, in effect, lending the purchase money to the buyer has an obvious incentive not to compete with his buyer while some of the purchase price is still owed to him. The seller logically wants the buyer to succeed so he can pay off the debt to the seller and not jeopardize the contract of sale. We can imagine many situations in which it would be reasonable for a company just getting on its feet after paying off the seller to need more time to establish itself before being required to compete with the seller. More importantly, however, in this case the seller did not go out of the vending machine business. Hyde retained the music and cigarette business as well as a kitchen which at one point was rented to Valley Vending, Inc., when Valley began to compete with C M. Thus, unlike the seller who rids himself of the tools of his trade, the contacts, and the “good will” of the operation, Hyde remained poised to resume food and beverage vending. Under these circumstances the covenant not to compete was of reasonable duration. We are not persuaded by the appellants’ argument that C M had no protective interest, such as trade secrets, customer lists, or special licenses. In some of the sale of business cases noted above we approved covenants not to compete where the business was no less mundane or more secretive or specialized than the vending machine business, e.g., Bledsoe v. Carpenter, supra, (tailoring, cleaning and pressing); Robins v. Plant, supra, (cotton gin); Wright v. Marshall, supra, (restaurant). 2. The Injunction The chancellor enjoined breach of the covenant. The judgment does not specify to whom the injunction is directed. To the extent it may be considered to enjoint the non-corporate, individual appellants from breaching the contract, it must only apply to Bert and Nancy Hyde, as they are the only appellants who are parties to the contract. The other non-corporate, individual appellants however, as well as Valley Vending, Inc., should be enjoined only from aiding or abetting Bert or Nancy Hyde from breaching the contract. See Daughtry v. Capital Gas Co., 285 Ala. 89, 229 So. 2d 480 (1969). As equity cases are reviewed de novo, Apple v. Cooper, 263 Ark. 467, 565 S.W.2d 436 (1978), this court may modify the injunction. 3. Damages The appellants devote two points in their principal brief to damages. First, they contend no damages should have been awarded due to the invalidity of the covenant. As we hold the covenant to be valid, we need not go further on that point. Second, they contend the court awarded an injunction as well as damages which would result from conduct enjoined; in other words, these are damages for future misconduct in which the appellants will be unable to engage if the injunction stands. In particular, the court found C M would have gotten not only the ANO contract beginning September 1,1984, but would have obtained a renewal of it September 1,1987. The court added $22,476.30 for profits C M would lose in the three and one-half months from the renewal of the contract on September 1, 1987, until the covenant not to compete expired December 15, 1987. As the injunction will prohibit Bert and Nancy Hyde and Valley Vending, Inc., from competing with C M, they will not be allowed to renew the contract with ANO. The judgment is thus modified by reducing the damages awarded for loss of the ANO contract from $253,661.13 to $231,184.83. The chancellor’s judgment recited that the damages were awarded against all of the appellants for “breach of the covenant.” The appellee argues that, as only Hyde Vending Co., Inc., Bert Hyde and Nancy Hyde were parties to the covenant, the damages awarded jointly and severally against the other individual appellants must have been based on some tort theory such as intentional interference with a contractual relationship. There is no indication from the record and certainly none from the judgment that any such liability was determined. As the appellants other than Hyde Vending Co., Bert Hyde and Nancy Hyde were not parties to the covenant, they are not liable for damages resulting from its breach, and the judgment must be modified in this respect as well. 4. Cross Appeal In calculating the damages to C M for loss of the ANO contract, the court used the gross profit C M had made in the last three years of its contract with ANO and allowed a recovery of 25 percent, presumably as a reasonable net profit loss. The court found C M made a gross profit, less ten percent commission to ANO, of $924,739.31 over thirty-six months. Twenty-five percent of that figure was found to be $231,184.83. Dividing by 36, he obtained a monthly profit figure of $6,421.80. The appellee contends the percentage to be used should have been 44.64 percent rather than 25 percent because Valley Vending, Inc., was making that much more gross profit. It is enough to say that the profits earned by the party allegedly in breach of the covenant are irrelevant to profits which would have been earned by the appellee had there been no breach. Sumlin v. Woodson, 211 Ark. 214, 199 S.W.2d 936 (1947). 5. Conclusion The injunction is modified to enjoin appellants Bert Hyde and Nancy Hyde from further breaching the covenant not to compete and to enjoin Valley Vending, Inc., Donna Walker, David Hyde, Bert Lynch and Randy Talkington from aiding or abetting Bert or Nancy Hyde in breaching the covenant not to compete. Damages from the appellants to the appellee are reduced from $253,661.13 to $231,184.83. The decree is further modified to reflect that these damages are awarded jointly and severally against Hyde Vending Co., Inc., and its stockholders, i.e., Bert Hyde and Nancy Hyde, but not against the other appellants. The judgment of the trial court is otherwise affirmed on appeal. We also affirm on cross appeal. Purtle, J., not participating.

George Rose Smith, Justice. This is a use tax case. The appellant, the Arkansas Commissioner of Revenues, assessed a tax deficiency against the appellee, Deltic, on the theory that a use tax should have been paid on Deltic’s purchase of a large crane. Deltic claimed that the purchase was a tax exempt transaction, because the crane is used in the manufacture of lumber and of wood chips, the latter being eventually sold to paper mills. Ark. Stat. Ann. § 84-3106(D)(2) (Repl. 1980). The Commissioner denied the exemption, holding that the crane is not used in the manufacturing part of Deltic’s business, or if so, the crane is not used “directly” in manufacturing, as the statutory exemption requires. Deltic paid the tax under protest and brought this action for its recovery. The chancellor rejected the Commissioner’s contentions and directed a refund of the tax. The appeal comes to this court as presenting an issue of statutory construction. Rule 29(l)(c). The facts are not seriously in dispute. From 1973 until 1979 Deltic conducted only a sawmill operation in which it sawed logs into lumber and sold the lumber to wholesalers. Owing to economic conditions the sawmill became so unprofitable that Deltic was forced to consider going out of business. Deltic decided to solve its problem by purchasing low-grade timber, referred to as “stumpage,” which would be used as much as possible for the production of lumber, with the rest being used in the production of high-quality wood chips. Deltic put its plan into effect by constructing a $3.2 million “merchandiser,” which is a physical plant that was built next to the sawmill operation and supplements that facility. The entire merchandiser was considered by the Commissioner to be tax exempt except for the crane now in question. That crane, bought for $572,519, is set in concrete and serves the merchandiser primarily and the sawmill secondarily. Stumpage is brought in trucks from the woods to Deltic’s plant. Stumpage that is already cut to sawmill length is unloaded at the sawmill department and is used in the manufacture of lumber, as before. Trucks also bring in low-grade stumpage of tree length rather than of sawmill length. The crane lifts those logs to a height of perhaps 14 feet and places them on the “cut-up deck” of the merchandiser. The chancellor’s order describes the cut-up process in this language: The merchandiser cuts part of the low-grade stump-age which is in tree lengths into sawlog lengths ready for cutting into lumber and the rest of the stumpage is used for the production of high-quality chips that must meet rigid quality standards. By cutting the stumpage into sawlog lengths, the first step is avoided in the lumber department of the plant where high-quality tree-length stumpage is first cut into sawlog lengths. This first cut into sawlog lengths at the merchandiser is as important and requires as much skill as the remaining cutting determinations in the manufacturing of lumber. The stumpage that has been cut in the merchandiser to sawmill length is carried, apparently not by the crane, to the sawmill to be made into lumber. The rest of the low-grade stumpage is debarked in the merchandiser, cut into chips, and sorted as to size. The chips must meet certain specifications, have less than 1% bark, and be free from soil and other objectionable substances. A Deltic witness testified that making pulpwood chips is not just a matter of haphazardly cutting the log into little particles; a rigid specification by the paper mill must be met. The witness said: “I personally think we manufacture those chips.” The chips are sold to five different paper mills, one of which requires hardwood chips. The chancellor seems to have found that the chips are in fact manufactured, as the lumber admittedly is, for his order states: “After stumpage arrives at the mill it is moved through a continuous process that produces an end result of finished lumber and high-quality chips.” With regard to what is essentially an issue of fact, we cannot say that the chancellor’s finding is clearly erroneous. Further, the crane plays a part not only in the manufacture of the chips but also in the production of lumber, in that a substantial part of the stumpage that the crane lifts to the cut-up deck is first cut to sawlog length there and then is made into lumber at the sawmill department. The Commissioner also argues that even though the crane may play a part in the manufacture of lumber and chips, the crane is not used “directly” in manufacturing. Deltic’s proof, which is not contradicted, shows pretty clearly that the sawmill department could not operate without the merchandiser department, and vice versa. The chancellor described the whole Deltic plant as an integrated operation. His order goes on to say: The use of low-grade stumpage (tree-length pulpwood) through the merchandiser is necessary for the economics to allow the plant to operate and without the merchandiser operating, the Company could not for economic reasons justify continuing to operate the plant. Without the merchandiser department the plant could not use low-grade stumpage since the time element in cutting the stumpage would be too great, slow down the lumber department operation, and divert resources from producing finished lumber. . . . Economics require that the merchandiser be operated, and without it working with the rest of the plant in a continuous, well-synchronized operation, the cost of raw materials would be too high to allow the plant to continue to operate. . . . Economics would not allow the merchandiser to operate without the use of the crane. The primary function of the crane is to commence the manufacturing process by moving stumpage from the storage area onto the deck of the merchandiser where tree-length stumpage is cut. . . . It is the opinion of this Court that the crane in question was used directly in producing the finished end product into the form in which it was sold in the market, and consequently was exempt. Our decision in Cheney v. Georgia Pacific Paper Corp., 237 Ark. 161, 371 S.W.2d 843 (1963), is pertinent. There a turbine generator was used to generate electricity for the paper mill and to supply steam that was used in the paper-making process. We said that “it seems apparent to us that the steam turbine generator is a primary facility in the paper manufacturing process. If the turbine generator were removed the manufacturing operation would cease.” That case was followed in another not unlike this one, Arkansas Ry. Equipment Co. v. Heath, 257 Ark. 651, 519 S.W.2d 45 (1975). There we applied the use tax exemption to two diesel locomotive cranes that were used to move and to hold old railroad tank cars that were being made into highway culverts. In holding that the cranes were used directly in manufacturing the culverts we reasoned: “The machinery here involved is not only an integral part of the operation but the operation could not be performed without the use of the machinery.” Those observations are equally applicable to Deltic’s crane. The Commissioner stresses our settled rule that tax exemptions are strictly construed, that to doubt is to deny the exemption, and that therefore the exemption must be established beyond a reasonable doubt. That principle applies especially to the trial courts, who hear the testimony and determine issues of credibility. Even in tax exemption cases, however, we review the chancery court’s findings de novo and reverse only if they are clearly against the preponderance of the evidence. Arkansas Beverage Co. v. Heath, 257 Ark. 991, 993, 521 S.W.2d 835 (1975). Here the chancellor’s findings and conclusions are not clearly erroneous. Affirmed. Purtle, J. not participating. Hays, J., dissents.

Darrell Hickman, Justice. This appeal questions an award of attorneys’ fees. Some background is essential to understand this litigation which began in 1980 in Pope County Chancery Court, spread to forums in Kansas and North Carolina, and has consumed the time of numerous lawyers and courts. The case arises from a dispute between Leon and Wanda Millsap and Clift C. and Dorothy P. Lane. These couples agreed to build and equip a chicken processing plant in Pope County. The Millsaps were to provide their secret recipe and management, and the Lanes were to provide financing. They formed a corporation called Millsap Processed Foods (MPF), in which the Millsaps and the Lanes were 50/50 shareholders. The Lanes obtained a loan of $3,000,000 and MPF gave Lane Processing, Inc. (LPI), the Lanes’ family corporation, a promissory note for the debt. Disagreements ensued and in 1980 the Lanes petitioned for the dissolution of MPF and for appointment of a receiver. The Millsaps made a derivative counterclaim on behalf of MPF. Ultimately the Lanes purchased the MPF assets for $1,000,000 at a foreclosure sale. The chancellor’s decree, entered prior to the hearing on fees, contains findings pertinent to our review of the fee award. First, the chancellor found that the Lanes and LPI, who he determined to be one and the same, breached their agreement to finance and breached their fiduciary duties as officers and directors of MPF. This latter breach occurred when the Lanes purchased the MPF assets substantially below their value. He found that the land, building and equipment of the plant were actually worth $3,042,923 rather than the $1,000,000 the Lanes paid. The chancellor awarded damages for the breaches as follows: he found that MPF sustained damages of $2,082,542 from the Lanes’ purchase at foreclosure. That amount represented the actual value of MPF plus $39,717 foreclosure costs, less the one million paid by the Lanes. That judgment was awarded against the Lanes and LPI jointly and severally and was to be satisfied by the offset of the $3,000,000 note owed to LPI by MPF of which the principal sum of $2,316,392 was still owing. Over one million dollars in interest on the note was cancelled. The offset left $233,850 still owing on the note. The chancellor held that that amount was owed to the Lanes and LPI and their contingent claim for that money would be subject to all further judgments, costs and fees in the proceeding. The controversy in this case is rooted in the disposition of $400,000 of MPF assets. At the earlier foreclosure hearing, the chancellor held that MPF would retain a lien on $400,000 plus interest of its assets. This amount was sheltered from the Lanes’ bankruptcy proceedings in North Carolina and has been earning interest since December 29, 1980. The lien, with interest, amounts to over $540,000 and is in the trial court’s registry. The attorneys for MPF and the Millsaps brought a claim for attorneys’ fees of $422,977.50 for services rendered only to MPF for the derivative action. The claim represented 6,512 hours with hourly fees ranging from $112.50 to $30.00. The court held a hearing on the claim and detailed testimony of the hours spent by ten attorneys on the case was submitted together with actual out-of-pocket costs. James B. Blair and E. J. Ball, two experienced attorneys, presented their expert opinion of appropriate fees in cases such as this one. They testified at length and concluded the attorneys’ fees claimed were reasonable. Among the factors they considered in their determination were the experience of the attorneys, the complexity of the lawsuit and the results obtained. They both noted that the hourly rate claimed by the MPF attorneys was extremely low. The chancellor found that the hours spent and the rates charged by the attorneys were reasonable but that the upper limit of recovery of fees would be the total “economic benefit” to MPF. He found that amount to be $166,148 and awarded that amount, with interest, as attorneys’ fees. That figure was obtained by subtracting the Lanes’ $233,852 contingent claim from the $400,000 lien. It is from this finding that both parties appeal. The question below was what would be a reasonable fee for the MPF attorneys, but the only real issue presented here is whether the chancellor was correct in his determination that the fee should be limited to $166,148, which he found to be the total economic benefit to MPF. We find that the chancellor erred in holding that the fee is limited to $166,148. The American rule and the rule observed in Arkansas are that attorney fees are not chargeable as costs in litigation unless specifically permitted by statute. City of Hot Springs v. Creviston, 288 Ark. 286, 705 S.W.2d 415 (1986); Trustees v. Greenough, 105 U.S. 527 (1882). An exception has been created to that rule where a plaintiff has created or augmented a common fund or where assets have been salvaged for the benefit of others as well as himself. Powell v. Henry, 267 Ark. 484, 592 S.W.2d 107 (1980); Trustees v. Greenough, supra. Note, The Counsel Fee in Stockholder’s Derivative Suits, 39 Columbia L. Rev. 784 (1939). In such a situation, to allow the others to obtain the full benefit from the plaintiffs efforts without requiring contribution or charging the common fund for attorney fees would be to enrich the others unjustly at the expense of the plaintiff. Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714 (1966). This exception is commonly applied in shareholder derivative suits. Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970);Silberman v. Bogle, 683 F.2d 62 (3rd. Cir. 1982). Under the “substantial benefit” rule, which is a variation of the common fund doctrine, the successful plaintiff in a derivative action may be awarded attorneys’ fees against the corporation if the corporation received “substantial benefits” from the litigation even where the benefits were not pecuniary and no fund was created. Fletcher v. A. J. Industries, 72 Cal. Rptr. 146 (1968). The judge specifically found that the $233,852 owing to the Lanes and LPI was “a contingent claim in this proceeding .... subject to offsets for all judgments, interest, costs, attorneys’ fees and other awards against MPF or the Lanes and/or LPI arising out of these proceedings (not otherwise satisfied by the assets of MPF) as determined by the Court.” (Italics supplied.) Therefore the chancellor was wrong in determining that the Lanes’ contingent claim should be satisfied before the claim for attorneys’ fees. The Millsaps’ derivative action preserved $400,000 plus interest in corporate assets. This preservation of assets benefitted the corporation. See Marlin v. Marsh & Marsh, 189 Ark. 1157, 76 S.W.2d 965 (1934). Fletcher’s Cyclopedia Corp., § 6045 (Rev. Ed.). This fund would not exist at all if it had not been defended from claims made by the Lanes. This was more than a simple breach of contract action, as the Lanes contend; the chancellor found that the Lanes had breached their fiduciary duties to MPF. The chancellor also specifically found that the claim for attorneys’ fees was reasonable. Since over $542,000 as assets were preserved, the claim should be paid. The Lanes, by cross-appeal, would like to severely limit the attorneys’ fees. They suggest that the recovery must be limited to a percentage of half of the “economic benefit,” since each of the parties own half of the corporation. No one claimed at trial that this was not a derivative lawsuit; that is, that the Millsaps, as stockholders, were proceeding in behalf of the corporation for its benefit. The attorneys were conservative in the fees charged and the lawsuit was won against strong resistance over a protracted period. The attorneys should not be forced to settle for less than the amount they are due and that which the corporation can pay. Since the claimed fee of $422,977.50 was found to be reasonable, and since the corporation has the money to pay it, it was error to reduce the fee. The judgment for attorneys’ fees is modified. A judgment for $422,977.50 with interest will be entered effective March 27, 1985, the date from which the order was appealed. The Lanes also argue that the chancellor erred awarding over $30,000 in costs after the original bill for costs was approved. They state that this action violates “applicable case law.” No such case law is presented. Since the argument is unsupported by authority or persuasive reasoning, we will not consider it. Thomas v. Sanford, 281 Ark. 365, 663 S.W.2d 932 (1984). Affirmed as modified. Purtle, J., not participating. George Rose Smith, J., dissents.

Jack Holt, Jr., Chief Justice. Appellant filed an Ark. R. Crim. P. Rule 37 motion to vacate his guilty plea and ten-year sentence on a charge of theft by receiving, alleging various plea bargain agreements with the prosecuting attorney were breached; a psychiatric report favorable to a possible defense of insanity was suppressed by the prosecution; a search warrant which resulted in his arrest was defective; and the state had no evidence linking him to the alleged crimes. The petition was denied. Appellant’s single argument for reversal is that the trial court erred in not making specific findings of fact and conclusions of law, as required by Rule 37.3(a), regarding his allegation that he was denied access to a psychiatric report before entering his plea. We agree and reverse and remand for the trial court to correct this error. Jurisdiction is in this court pursuant to Sup. Ct. R. 29(l)(e). Before the evidentiary hearing on the motion, the circuit court ruled that the search warrant allegation was not a proper Rule 37 issue. The court also stated that it did not consider the psychiatric report, which was based on a preliminary examination before appellant was sent to the state hospital for a full evaluation, to be particularly significant. Although it was the declared intention of the trial court that the plea bargain agreements would be the only issue relevant to the Rule 37 proceedings, the court permitted the psychiatric report to be introduced into evidence and allowed testimony in relation to this report. Once this issue became of record, it was necessary for the court to make written findings of fact and conclusions of law. Rule 37.3(a) provides that “[i]f the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the trial court shall make written findings to that effect, specifying any parts of the files or records that are relied upon to sustain the court’s findings.” When an evidentiary hearing is held on a Rule 37 petition, this rule is mandatory and requires written findings. Williams v. State, 272 Ark. 98, 612 S.W.2d 115 (1981); State v. Maness, 264 Ark. 190, 569 S.W.2d 665 (1978). We do not remove from the trial court its discretion to determine which of the many issues often raised in a post-conviction petition are conclusively without merit and thus not relevant to the evidentiary hearing on the petition. In fact, if the record conclusively shows that a petitioner is not entitled to a hearing on any issue raised in the motion, this court will not reverse for a failure to make written findings of fact and conclusions of law explaining why the motion was denied. Simmons v. State, 265 Ark. 48, 578 S.W.2d 12 (1979). However, once a hearing is held and an issue is actually considered by the court, its resolution must be supported by written findings so that there can be a meaningful review of the proceedings. Accordingly, the trial court committed error in not including in its findings of fact and conclusions of law, a determination as to the psychiatric report. Reversed and remanded for findings consistent with this opinion. Purtle, J., not participating.

Per Curiam. Appellant was charged in 1983 with burglary and being an habitual offender. A week later he was charged with a second burglary. He refused an offer of a plea bargain whereby he would plead guilty and be sentenced to ten years imprisonment. He was subsequently tried before a jury on the first burglary charge and convicted. An enhanced sentence of thirty years imprisonment and a $15,000 fine were imposed. No appeal was taken. He pleaded guilty to the second burglary charge and a sentence of fifteen years was imposed to be served concurrent to the thirty-year sentence. In 1985 appellant filed a timely petition for postconviction relief pursuant to Ark. R. Crim. P. Rule 37, seeking release from prison. After a hearing on appellant’s petition, the trial court denied all relief. Appellant brings this appeal. Pursuant to Anders v. California, 386 U.S. 738 (1967), appellant’s counsel has filed a motion to be relieved and a brief stating there is no merit to the appeal. Appellant was notified of his right to file a pro se brief within 30 days. See Rules of the Supreme Court and Court of Appeals. Rule 11 (h), Ark. Stat. Ann. Vol. 3A (Supp. 1985). He did not file a brief. The State concurs that the appeal has no merit. In his Rule 37 petition, which concerned his jury trial only, appellant sought relief on four grounds: (1) He was not given a bifurcated trial as required by the habitual offender act; (2) evidence of his past criminal conviction was presented to the jury over counsel’s objection prior to the jury’s deliberation of guilt; (3) counsel failed to move for a directed verdict; and (4) counsel failed to file a notice of appeal despite appellant’s desire to appeal. Because the first three contentions were clearly contradicted by the trial record, appellant relied at the hearing on the contentions that his attorney was ineffective because he failed to advise him of the range of sentences which could be imposed upon conviction and failed to pursue an appeal. On appeal, we affirm the trial court’s denial of postconviction relief unless it is clearly against the preponderance of the evidence. Knappenberger v. State, 283 Ark. 210, 672 S.W.2d 54 (1984). The trial court’s finding of competency of counsel was not clearly against the preponderance of the evidence. Ineffective assistance of counsel is evaluated under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the court held that the criterion for judging a claim of effective assistance of counsel is whether counsel’s conduct so undermined the proper functioning of the adversarial process that the appellant was prejudiced and the result of the proceeding was thereby rendered unreliable. From the facts in the record, we cannot say that appellant’s counsel was ineffective. Appellant contended he was led to believe that he could still accept the state’s offer of a plea bargain if the jury returned a guilty verdict at the end of the first stage of his bifurcated trial. He also alleged that he believed he would receive two separate trials with separate juries, one to determine guilt and one to determine punishment. He further contended that counsel told him that he would not be sentenced to more than ten years if he went to trial. Appellant provided no support for the allegations to negate the evidence in the record which demonstrates that counsel was competent. Appellant signed an affidavit when he refused the plea bargain stating that he knew of the offered plea, that he understood the advice of counsel concerning the evidence against him, that he had elected to have a jury trial and that he was aware of. the range of sentences for burglary if he was convicted as a habitual offender. The trial court also conducted an in-chambers hearing concerning the possible punishment, which had already been explained to appellant at arraignment. Appellant’s conclusory assertion that he did not understand the possible consequences of a jury trial did not persuade the trial court that he suffered any undue prejudice. This Court will not disturb a finding by the trial court based solely on its assessment of a witness’s credibility. See Girdner v. State, 285 Ark. 70, 684 S.W.2d 808 (1985). The record supports the finding that appellant was fully advised of his right to appeal and that he did not make his desire to appeal known to counsel until after the time for filing a notice for appeal had elapsed. The trial judge informed the appellant when sentence was pronounced of his right to file a notice of appeal within thirty days. At the Rule 37 hearing, appellant conceded that the first time he indicated an interest in an appeal was in a letter sent to counsel in 1984, more than nine months after he was convicted. We have consistently held that the failure of counsel to perfect an appeal when the defendant desires an appeal amounts to a denial of defendant’s right to effective assistance of counsel. Henderson v. State, 278 Ark. 107, 643 S.W.2d 107 (1982). Here, appellant did not inform counsel of his desire to appeal until the time for filing a notice of appeal had passed. As a result, appellant waived his right to appeal. Moreover, appellant could have filed a motion for belated appeal in this Court at anytime within eighteen months of his commitment. Ark. R. Crim. P. Rule 36.9. Instead, he waited to seek a belated appeal until after the time for filing such a motion had expired; and then he addressed the request to the trial court under Rule 37. Rule 37, however, was not intended as a substitute for a timely motion for belated appeal addressed to this Court. If it were so construed, an appellant could simply by-pass the provisions of Criminal Procedure Rule 36.9 which govern belated appeals in favor of filing a petition pursuant to Criminal Procedure Rule 37. This would have the effect of doubling the time for requesting a belated appeal since Rule 37 petitions based on an allegation of ineffective assistance of counsel may be filed at anytime within thirty-six months, while motions for belated appeal under Rule 36.9 must be filed within eighteen months. From a review of the record and briefs before this Court, we find the appeal to be without merit. Accordingly, counsel’s motion to be relieved is granted and the judgment is affirmed. Affirmed. Purtle, J., not participating.

Jack Holt, Jr., Chief Justice. In this consolidated appeal, the constitutionality of Act 685 of 1983, Ark. Stat. Ann. §§ 75- 817.2, 75-817.3 and 75-819(b) (Supp. 1985), is challenged. The Act imposed a Highway Use Equalization (HUE) tax on all trucks that operate on Arkansas highways at maximum weights between 73,281 and 80,000 pounds. The appellants, American Trucking Association, Inc., (ATA), filed a complaint in Pulaski Chancery Court, fourth division, against appellees, Arkansas Highway and Transportation Department, alleging that the HUE tax would be an “illegal exaction.” Appellants requested a temporary restraining order preventing the money collected under Act 685 from being deposited into the state treasury. Chancellor Bruce Bullion dissolved the temporary restraining order and denied appellants’ requested preliminary injunction. That decision was appealed to this court. We affirmed Chancellor Bullion’s decision and reserved any further consideration until after a trial on the merits. American Trucking Ass’n, Inc., et al. v. Gray, Director, 280 Ark. 258, 657 S.W.2d 207 (1983). The case was remanded, certified as a class action, and the trial on the merits was held. Appellants attempted to prove that the HUE tax as written and administered was violative of the commerce clause, the privileges and immunities clause, and the equal protection clause of the fourteenth amendment to the United States Constitution. Chancellor Bullion ruled on October 11, 1984, that the tax was constitutional and that appellants’ counsel were not entitled to attorneys’ fees. On January 25,1984, the companion case of ATA.Inc., et al. v. Charles D. Ragland, et al., was filed in the second division of Pulaski Chancery Court. That complaint also challenged the tax as an illegal exaction and alleged that Act 685, which was approved by a mere majority vote of the General Assembly, was subject to the three-fourths voting majority required by amendment 19 § 2 of the Arkansas Constitution. Chancellor John Earl granted appellees’ motion for summary judgment on this issue. Since the facts and issues in the two appeals are similar, they were consolidated in this court. Our jurisdiction is pursuant to Sup. Ct. R. 29(1)(a), (c), and (j). We uphold the constitutionality of Act 685. Act 685 provides that the HUE tax is to be administered for all Arkansas base-registered trucks by the Commissioner of Revenues of the Revenue Division of the Department of Finance and Administration, while the Director of the Arkansas State Highway and Transportation Department administers the tax for all non-Arkansas base-registered trucks. The Act provides that the HUE tax for all vehicles can be satisfied through the election to pay: 1) an annual flat fee of $175; 2) a fee equal to 50 per mile for every mile the truck travelled in Arkansas during the previous registration year; or 3) for the purchase of a trip permit at the rate of $8.00 per hundred miles driven. The appellants primarily rest their arguments on the results of a survey conducted by ATA regarding Arkansas and non-Arkansas base-registered trucks upon which the HUE tax is imposed. The survey results, according to appellants, established that the average cost of complying with the HUE tax, on a per mile of operation basis, affects non-Arkansas base-registered trucks at a rate 370% higher than it impacts Arkansas base-registered trucks. Under these circumstances, appellants maintain the practical effect of the HUE tax is to unconstitutionally discriminate against the non-Arkansas based vehicles’ use of the highways. The appellants urge seven points for reversal, which will be discussed individually. I. THE HUE TAX VIOLATES THE COMMERCE CLAUSE States are not permitted to tax interstate commerce in a manner that discriminates in favor of local interests. Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450 (1959); Boston Stock Exchange v. State Tax Comm’n, 429 U.S. 318 (1977). The appellants pursue two theories in their commerce clause argument. First, they state the HUE tax, although facially neutral, imposes a far higher effective tax rate on out-of-state trucks than on in-state trucks for the same use of the highways. Their second argument is that as a flat, nonproportional tax, it is not fairly related to the level of highway services provided by the state to each HUE taxpayer. In Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977), the United States Supreme Court considered the validity of a state sales tax under the commerce clause. The Court noted that under its prior decision in Spector Motor Service v. O’Connor, 340 U.S. 602 (1951), a state tax on the “privilege of doing business” was per se unconstitutional when it is applied to interstate commerce. In Brady, the Supreme Court overruled Spector, and instead, applied a four-part test to determine constitutionality under the commerce clause. Under that test a tax is valid when the tax (1) “is applied to an activity with a substantial nexus with the taxing State”, (2) “is fairly apportioned”, (3) “does not discriminate against interstate commerce”, and (4) “is fairly related to the services provided by the State.” In Burlington N.R.R. Co. v. Ragland, Comm’r, 280 Ark. 182, 655 S.W.2d 437 (1983), we acknowledged that “whenever there is a challenge to any state tax on interstate commerce, the tax will be subjected to the Brady test.” The appellants maintain that the HUE tax fails to meet the third and fourth prongs of the Brady test. Since they admit that the tax is facially neutral, the appellants are claiming in their discussion of the third prong, that its practical effect is to discriminate against interstate commerce. This argument is based on the results of the ATA survey discussed previously. Although several arguments, pro and con, are made about the veracity of the ATA survey, we find no evidence that the HUE tax discriminates against interstate commerce. The tax is structured to offer three options for compliance. A truck that meets the criteria of the tax may pay an annual flat fee, a fee based on mileage, or buy a trip permit. These options are available to intrastate and interstate carriers alike. The money collected is used to offset highway repairs and costs and thus the HUE tax is in the nature of a user fee or tax. In Aero Mayflower Transit Co. v. Georgia Public Serv. Comm’n, et al., 295 U.S. 285 (1935), the U.S. Supreme Court discussed a Georgia statute imposing an annual license fee for the maintenance of the highways. The Court found the statute did not lay an unlawful burden on interstate commerce. In so holding, the Court noted that the fee is a moderate amount, it is used for the upkeep of highways, and “it is exacted without hostility to foreign or interstate transactions, being imposed also upon domestic vehicles operated in like conditions.” There, too, the Court was confronted with the argument that the out-of-state carrier uses the roads of Georgia less than the local carriers, yet they pay the same amount. The Court held, “[t]he fee is for the privilege for a use as extensive as the carrier wills that it shall be. There is nothing unreasonable or oppressive in a burden so imposed . . . One who receives a privilege without limit is not wronged by his own refusal to enjoy it as freely as he may” (citations omitted). Here, the amount of the fee is not being challenged as unreasonable per se, the money is used for the upkeep of the highways traveled by the carriers being taxed, and the tax applies to foreign and domestic carriers alike. The interstate carriers can opt to pay the flat fee. The fact that they do not make extensive use of the state’s highways, does not make the tax levied discriminatory. Again, in Aero Mayflower Transit Co. v. Bd. of R.R. Comm’rs of Montana, et al., 332 U.S. 495 (1947), the Supreme Court discussed two flat highway taxes imposed “in consideration of the use of the highways of this state.” The Court found neither exaction discriminated against interstate commerce since each applies alike to local'and interstate operations and neither taxes traffic or movements taking place outside Montana. The Court stated: Motor carriers for hire, and particularly truckers of heavy goods, like appellant, make especially arduous use of roadways entailing wear and tear much beyond that resulting from general indiscriminate public use . . . Although the state may not discriminate against or exclude such interstate traffic generally in the use of its highways, this does not mean that the state is required to furnish those facilities to it free of charge or indeed on equal terms with other traffic not inflicting similar destructive effects . . . Interstate traffic equally with intrastate may be required to pay a fair share of the cost and maintenance reasonably related to the use made of the highways, (citations omitted). The appellants maintain that the Brady decision overruled the Court’s early decisions in the two Aero Mayflower cases. We disagree. The Court expressly overruled only Spector. It did not so treat these cases. Furthermore, in Massachusetts v. United States, 435 U.S. 444 (1978), decided one year after Brady, the Supreme Court analogized the problem of a flat fee registration tax on all civil aircraft, to their previous motor vehicle tax cases, citing the Montana Aero Mayflower decision. The Maryland Court of Appeals reached a similar conclusion in American Trucking Ass’ns Inc., et al. v. Goldstein, et al., 483 A.2d 47 (Md. 1984), using reasoning we now adopt. That court discussed an annual registration fee imposed on all motor carriers operating in Maryland. The Maryland court specifically found that Brady “did not undercut the previously discussed flat highway user tax cases”, which included both Aero Mayflower decisions. In finding that the registration fee did not discriminate against interstate commerce under Brady, the Maryland court noted that “[i]t is not aimed at placing interstate business at a competitive disadvantage with local businesses”, it “applies equally” to in-state and out-of-state registered motor carriers, and its purpose “is not to protect local carriers against foreign competition.” Rather, the court noted its purpose “is to spread evenly among all commercial users the tax burden of supporting Maryland’s highway system.” The HUE tax meets the same criteria and accomplishes the same purposes. The appellants claim their statistics show that the HUE tax is discriminatory because, on a cost per mile basis, out of state truckers are charged more. Assuming their statistics are valid, the flat tax portion of our law must, logically, be the most onerous provision. The per mile or per trip alternatives benefit the out of state truckers by permitting them to pay less than the flat tax. We need go no further than to cite the cases holding that a flat tax is not discriminatory. The alternatives offered by our law, which in fact could benefit the out of state truckers, do not make this case distinguishable from the ones approving the flat rate as being a proper tax method in the context of a commerce clause challenge. As to the argument under the fourth prong of Brady, that as a flat tax, it is not fairly related to the level of highway services provided by the state to each HUE taxpayer, it can be answered under the same authority as the previous argument. The first “flat fee” case dealt with by the U.S. Supreme Court was the Georgia Aero Mayflower case, supra. The Court upheld the flat tax then, and in subsequent flat fee cases, holding that a state may impose a flat fee for the privilege of using its roads. In Capitol Greyhound Lines, et al. v. Brice, Comm’r, 339 U.S. 542 (1950), the Court held that the formula used in calculating the flat tax was not crucial, rather the relevant inquiry was whether the amount of the tax was excessive. We agree. Acts of the Legislature are presumed to be constitutional and will not be held by the courts to be unconstitutional unless there is a clear incompatibility between the act and the constitution, with all doubts resolved in favor of the act. Pulaski County Municipal Court v. Scott, 272 Ark. 115, 612 S.W.2d 297 (1981). Here, the flat tax rate of $ 175 was not shown to be excessive or unreasonable. THE HUE TAX VIOLATES THE EQUAL PROTECTION CLAUSE The fourteenth amendment to the U.S. Constitution provides that no person shall be denied equal protection of the law by any state. Before a statute can be reviewed under the equal protection guarantee, a party must demonstrate that the law classifies persons in some manner. Nowak, Rotunda, & Young, Constitutional Law, p. 600 (2ded. 1983). There are three ways to establish a classification: the statute may do so on its face; a facially neutral statute may be applied unevenly to different groups by those administering it; or a facially neutral law, applied evenhandedly, in reality may constitute a device designed to impose different burdens on different classes of persons. Id. The appellants argue that the tax classifies carriers based on interstate versus intrastate commerce. Once a classification is found to exist, the equal protection analysis turns on whether the classification bears a rational relationship to a legitimate state interest. We need not reach the rational relationship test, however, because no classification exists. The appellants acknowledge that the statute is facially neutral, so the first method of classifying is not established. The other two methods concern the uneven application and the burdensome effect of a neutral statute. We have already indicated in our discussion of the commerce clause that the statute is applied to interstate and intrastate carriers alike and does not have a discriminatory effect on interstate commerce. Since interstate commerce is not singled out for disparate treatment, no classification on that basis is made, and no equal protection problem arises. III. THE HUE TAX VIOLATES THE PRIVILEGES & IMMUNITIES CLAUSE The privileges and immunities clause provides that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the Several States.” United States Constitution, Art. IV, § 2. It is well established that the privileges and immunities clause is inapplicable to corporations. Hemphill v. Orloff, 277 U.S. 537 (1928); Western & Southern Life Ins. Co. v. State Bd. of Equalization of Calif., 451 U.S. 648 (1981). The named appellants, ATA, et al., are all corporations. Nevertheless, they argue that since their complaint was certified as a class action, there are noncorporate individuals within the class which permits them to raise a privileges and immunities challenge, citing City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982), rehearing denied. Cash does not stand for that proposition. The lawsuit in that case was filed by six residents of the city of Little Rock who were water users. The case was certified as a class action. There is no discussion about corporate and noncorporate parties. Nor did our research indicate that there is any case law stating that it will be assumed that noncorporate individuals are included in a class action in a case such as this. In fact in ATA, et al. v. Goldstein, et al., supra, the same appellants attempted to raise a privileges and immunities argument. The Maryland court noted that the clause was inapplicable to corporations and stated: “ [a] 11 of the named plaintiffs are corporations. As such, they have no standing to challenge § 423(a) under the Privileges and Immunities Clause of Art. IV.” Here, as in that case, all the named plaintiff's are corporations. Therefore, they have no standing to make this argument. IV. THE ARBITRARY & DISCRIMINATORY REGULATIONS & ADMINISTRATION OF THE HUE TAX ARE UNCONSTITUTIONAL Act 685 divides authority for the administration of the HUE tax between the Commissioner of Revenues of the Department of Finance & Administration, (DF&A) for Arkansas base-registered vehicles; and the Director of the Arkansas State Highway & Transportation Department, (ASH&TD) for non-Arkansas base-registered vehicles. Appellants do not object to the regulations or administration by the DF&A. Their argument under this point instead is directed toward the ASH&TD, whose regulations and policies, they maintain, violate the commerce clause, the privileges and immunities clause, and the equal protection clause of the Constitution. We can immediately dispense with the privileges and immunities argument since the named appellants are corporations. As to the commerce clause and equal protection allegations, the appellants maintain that the regulations and policies of the ASH&TD violate the first and third prongs of the Brady test, supra. The appellants specifically object to (a) the ASH&TD’s general approach, (b) the specialty carrier status, and (c) fleet registration. (a) The general policies named by appellants are that the ASH&TD, unlike the DF&A, does not allow the owner/operator of non-Arkansas base-registered trucks the option of choosing whether to qualify their trucks by weight for the use of the highways afforded by payment of the HUE tax. The policy appellants are challenging requires non-Arkansas base-registered trucks to either declare that they are carrying 73,281 pounds in Arkansas and pay the HUE tax, or else take some affirmative action to elect not to carry that weight. A non-Arkansas base-registered truck who has not taken either of these actions is not allowed to enter the state. This affirmative action is burdensome on interstate commerce according to the appellants. The appellants’ argument is without merit. All trucks must declare their gross weight for travel in Arkansas. Arkansas base-registered vehicles do so when they register in this state. Those Arkansas vehicles who participate in the International Registration Plan (IRP) declare their weight by a sworn statement on the IRP application. Obviously, a comparable opportunity was needed for non-Arkansas base-registered carriers to declare their gross weight. The Highway Department established a mechanism where a carrier could either qualify and pay the HUE tax or formally declare a gross weight below 73,281 pounds and obtain a free specialty carrier decal. The state’s interest in a weight declaration from all trucks travelling on state highways is apparent, satisfying the first prong of Brady. As to the discrimination issue raised under the third prong, all carriers have to take some affirmative action to declare the weight of their vehicles. Here, ASH &TD had the authority to promulgate its regulation and it is reasonable. As a practical matter the mechanism for registration differed for interstate vehicles, yet the result was the same, without undue burden to interstate commerce. During oral arguments, appellees’ counsel explained that to implement registration procedures, it was necessary to utilize a certain policy during the first two years of registration after the act became effective, however, that now there is no difference in registration for those carriers who are members of IRP. They are presently allowed to declare the gross weight of their vehicles when they register in other states. Likewise, non-Arkansas base-registered carriers, who are not members of IRP, still submit an affidavit as to weight and receive a special carrier decal upon entry into Arkansas. These simple methods for carriers to declare gross weight of vehicles for travel in Arkansas are non-discriminatory. (b) The specialty carrier status was created by regulation and is awarded to carriers entering the state who are carrying below 73,281 pounds or fall within a statutory exemption and are thus not subject to the HUE tax. The specialty carrier decal is given free to those carriers and allows them entry into the state. Appellants contend the status was created by regulation even though the language of Act 685 does not provide a rational basis for the creation of such a classification. This action, they claim, violates the agency’s legislative grant of rule-making authority, citing State, ex rel Attorney General v. Burnett, 200 Ark. 655, 140 S.W.2d 673 (1940). Burnett held that a regulation promulgated by the commissioner of revenues was contrary to the applicable statute and therefore void. The specialty carrier status is not contrary to Act 685. It identifies exemptions to the HUE tax, including trucks carrying less than 73,281 pounds. Since the ASH&TD is required to administer the HUE tax and to do so requires a determination of the gross weight of vehicles using the state’s highways, the designation of the specialty carrier status is a way to facilitate collection of that tax and is within the agency’s power to promulgate. (c) Appellants also complain that non-Arkansas base-registered carriers must qualify their trucks by an “integral fleets” classification, under only one payment option. Arkansas-based owner/operators are allowed by DF&A to pick their payment option and apply it to their individual trucks, according to appellants. The appellants misinterpret the pertinent policies. The actual practices of the ASH&TD and DF&A are the same: they allow one payment option per fleet. Arkansas base-registered vehicles that are registered under the IRP have their mileage reported by the IRP on a fleet basis. That IRP mileage documentation is then used by the DF&A to allow the carrier to select an option for each fleet. Similarly, the ASH&TD allows mileage documentation to be computed on a fleet basis using either IRP records or other records submitted to a governmental entity for some official purpose. Once the fleet is set, in either case, only one option of HUE payment is allowed. The ASH&TD allows non-Arkansas based carriers, where separate integral fleets exist under one ownership and separate record and reporting systems are maintained for each integral fleet, to select separate options. Highway Department Regulation V(B). The DF&A also has a regulation stating that IRP qualification shall be on a fleet basis and all affected vehicles will pay either of two relevant options. Highway Use Equalization Tax Regulations, paragraph (8). Mary Ellen Gerke, head of the Revenue IRP Unit, testified that a single IRP fleet can select an option but the owner has to then exercise the same option with all the trucks in that account or fleet. Since there is no disparate treatment there is no basis for a claim of discrimination. V. ACT 685 OF 1983 WAS NOT ADOPTED IN ACCORDANCE WITH THE REQUIREMENTS OF THE ARKANSAS CONSTITUTION Amendment 19 § 2 of the Arkansas Constitution provides that no rates for “property, excise, privilege or personal taxes now levied shall be increased by the General Assembly except... in case of an emergency, the votes of three-fourths of the members elected to each House of the General Assembly.” The appellants suggest that Act 685 is an increase in an existing “privilege tax” and is therefore subject to the three-fourths vote requirement. In support of their allegation that an existing privilege tax has been increased, appellants point to the registration fee charged under Ark. Stat. Ann. § 75-201 (Repl. 1979 and Supp. 1985), as the tax that Act 685 increased. Appellees maintain this is a new tax on the new privilege of carrying larger loads. We find that amendment 19 § 2 is inapplicable because Act 685 does not impose a privilege tax but rather exacts a user fee from motor vehicles carrying the prescribed weight. In Evansville-Vanderburgh Airport Auth. Dist., et al. v. Delta Airlines, Inc., 405 U.S. 707 (1972), the U.S. Supreme Court explained: that a charge designed only to make the user of state-provided facilities pay a reasonable fee to help defray the costs of their construction and maintenance may constitutionally be imposed on interstate and domestic users alike. . . At least so long as the toll is based on some fair approximation of use or privilege for use, . . . and is neither discriminatory against interstate commerce nor excessive in comparison with the governmental benefit conferred, it will pass constitutional muster. . . Such charges for the use of public facilities, like highways, have been characterized as being in the “nature of rent charged by the State, based upon its proprietary interests in the public property, rather than of a tax.” Hartman, Federal Limita tions on State and Local Taxation, Chapt. 12 p. 665 (1981). We find that this is a user fee, passed by the Legislature to compensate the state for the wear and tear on the highways caused by trucks carrying the higher weights. It is not a privilege tax in a technical sense. A privilege tax is “ [a] tax on the privilege of carrying on a business or a occupation for which a license or franchise is required.” Black’s Law Dictionary, (5th ed. 1979). Trucks not carrying the higher weight are not prohibited from travelling through the state, thus, the HUE tax is not a tax for the privilege of carrying on a business. It is instead a charge for the damage done by trucks carrying the higher weights and is exacted to make repairs. Since the approval of a user fee does not necessitate a three-fourths majority in the Legislature, appellants’ argument is without merit. VI. THE FINDINGS & CONCLUSIONS OF THE CHANCELLORS ARE INSUFFICIENT UNDER ARCP RULE 52(a) Arkansas Rules of Civil Procedure Rule 52(a) provides that, in contested actions tried by a judge without a jury, if requested by a party, “the court shall find the facts specifically and state separately its conclusions of law thereon.” Appellants here object to the findings of fact and conclusions of law promulgated by the chancellors, claiming they were very brief, general and conclusory in nature. Rule 52(a) does not address the specificity with which findings of fact and conclusions of law must be made. Furthermore, we review chancery cases de novo and the chancellors’ findings and conclusions are supported by the record in this case. Accordingly, this point is not well taken. VH. APPELLANTS SHOULD BE AWARDED ATTORNEYS’ FEES WITH REGARD TO ANY REFUNDS RECEIVED BY MEMBERS OF APPELLANT CLASS The appellants pursue two theories seeking attorneys’ fees. Initially they state that if this court should find that the HUE tax is an illegal exaction and refund taxes collected to members of appellant class, that a portion should be awarded as attorneys’ fees. Since we find that the tax is constitutional, this argument need not be addressed. Appellants next contend that, notwithstanding the decision on the merits, Chancellor Bullion erred in denying them an award of $9,270.42 in attorneys’ fees. The chancellor found that refunds were made to the class from taxes erroneously collected pursuant to emergency regulations, before the final regulations were enacted. The final regulations did not include this erroneously collected tax. The judge ruled, however, that there was no common fund from which the attorneys’ fees could be paid, and denied the claim. We agree. In Powell, Mayor of N.L.R. v. Henry, 267 Ark. 484, 592 S.W.2d 107 (1980), the appellants sought attorneys’ fees from refunds that were made to electrical ratepayers. This court held that attorneys’ fees were proper because the refund created a common fund, and stated: [T]he action was a class action, which resulted in the recovery of a substantial amount which constituted a common fund. The allowance of attorneys’ fees from a common fund established or augmented through the efforts of the attorneys to whom the fee is allowed is a well recognized practice and is proper, (citations omitted). Awards have been made by courts based on the common fund doctrine where the litigation results in the creation of a common fund against which the fees may be awarded. Annotation, 89 A.L.R.3d 690, 701 (1979). In finding that the common fund requirement was not met, Chancellor Bullion explained in a letter opinion that: Because the Court refused to enjoin the collection of this tax, and refused to require the tax monies to be deposited in an escrow account, all of the tax monies collected under Act 685 have been, and are now being deposited in the State Treasury. There is no impounded fund from which costs and fees that might be allowed for a successful taxpayers action to be drawn. Monies paid by truckers under the offensive emergency regulation long ago ceased to be paid, and those who paid under its mandates received full refunds long ago. It is probably true that other lawful Act 685 taxes are being received by the State on a daily basis, but this tax money is not related to the offensive emergency regulation, rather are being collected pursuant to the valid exercise of the State’s power to tax. In this situation, it is beyond the power of this Court to order state government to pay counsel for the class a fee for services, no matter how deserving it may be. We do not find the chancellor’s finding of fact that no common fund was established to be clearly erroneous. Ark. R. Civ. P. 52(a). Accordingly we affirm his judgment. Affirmed. Purtle, J., not participating. Hickman, J., dissents.

George Rose Smith, Justice. On December 9, 1983, the petitioner was stopped and arrested for DWI. His resistance to the officers resulted in an additional charge of second-degree battery. The DWI charge, a misdemeanor, was promptly tried in municipal court. Petitioner’s appeal from that conviction was consolidated in the Pulaski Circuit Court, Fourth Division, with the pending felony charge. On September 4,1985, after the case had been transferred to the First Division, petitioner filed a motion to dismiss for want of a speedy trial. By then the lapse of time since the arrest was almost 21 months. The First Division judge, who was not in any way at fault, denied the motion to dismiss, in the belief that the issue should be tested by an application to this court for a writ of prohibition. We issued a temporary writ, and the case has now been submitted on briefs. We find that the charges should have been dismissed. The maximum permissible delay, after the exclusion of delays chargeable to the defense, is 18 months, A.R.Cr.P. Rule 28.1(c) (Supp. 1985). A two-month delay was admittedly so chargeable; the court’s docket entry recites that the continuance was on motion of the defense. Still, the only way the total delay can be reduced to less than 18 months is for the defense to be charged with another continuance from November 2, 1984, to January 22,1985. The court’s docket reflects the resetting of the case for trial on January 22, but the docket entry does not state why or at whose request the case was reset. When the time allowed by the speedy trial rule has been exceeded, the prosecution has the burden of proving that the delay was legally justified. State v. Lewis, 268 Ark. 359, 596 S.W.2d 697 (1980). Here the pertinent testimony was that of the deputy prosecutor who was handling the case. The critical docket entry was dated November 2, 1984. The deputy testified that a day or two after she interviewed her witnesses on October 31, she talked to the defense and learned that the case was not to be tried on November 8, as scheduled. “I remember him saying at that time that that case is not going to trial on that date, and giving me the reasons why, which I do not remember.” She went on to say that she was present when the case was continued on November 2: “And on November 2nd I made the motion that it was continued at that point on the defense request. . . . I do not know why it’s not reflected on the docket.” The prosecution failed to sustain its burden of proof. The witness could not remember why the case had been continued, leaving the possibility that the delay might have been excludable even though requested by defense counsel. Moreover, the deputy prosecutor was present and made the motion that the case be continued, but failed to make certain that the docket entry reflected which side was responsible for the delay. Understandably, it could not then have been foreseen that the omission would eventually be decisive, but we must nevertheless conclude that the State’s failure to make a complete record is fatal to its present argument. Writ granted. Purtle, J., not participating.

George Rose Smith, Justice. The appellant, Herman Holland, and his co-defendant, John Zones, were charged with capital murder, kidnapping, and aggravated robbery. At separate trials each was found guilty of all three offenses and sentenced to life imprisonment without parole upon the charge of capital murder, with which the trial court merged the other two offenses. We find no merit in Holland’s, arguments for a new trial, nor any prejudicial error in the other points disclosed by the record as abstracted. After Zones had been convicted he testified as a witness for the State at Holland’s trial. The basic facts were much the same as they had been developed at Zones’s trial. See our opinion in Zones v. State, 287 Ark. 483, 702 S.W.2d 1 (1985). Zones testified that he and Holland had spent the evening drinking at bars with the victim, James Mitchell. The three men left in Mitchell’s car at about 4:00 a.m. According to Zones, it was Holland who stabbed the victim and put him in the trunk of the car. They drove out the Memphis highway and stopped by Faulkner Lake, which is swampy and shallow. Zones testified that Holland struck the victim twice on the head with a tire tool, dragged him from the car, and disposed of the body by taking it out into the lake, where he anchored the body under the water with logs. The next morning, according to Zones, the two men first tried to get a woman to dispose of the car for them and finally burned it near the Arch Street Pike. The murder was committed on July 9 or 10. In September, after Zones had been arrested, he showed the officers where the body had been submerged. A picture of the remains, just under the surface, was introduced at the Zones trial and again at this one. We have examined the picture and do not find it so offensive as to be inadmissible. Nor was a picture of the burned car subject to objection. The testimony of Zones, a confessed accomplice, was sufficiently corroborated. Carla Bettis, who had been Holland’s girl friend and by whom he had had a child, testified that Holland had told her that he and a man named John had picked up a man at a bar, that they had ridden around drinking with him, and that Holland stabbed the man. According to her, Holland said they took the man to a swampy part of the river, where John beat the man with a tire tool. They then stripped him down and tied him out in the river. Holland testified in his own defense. He admitted having been with Zones that evening until about 2:30 a.m., but he said he then went home. He said he saw Zones the next day at about noon and was with Zones when they tried to persuade a woman to dispose of the car. It is argued that the corroborating witness’s testimony differed in several respects from the facts as proved at the trial. That is to some extent true, but the jury was properly instructed as to the need for corroboration. Upon the evidence the jury could, and evidently did, find the corroboration to meet the requirements of the law. If believed, it was sufficient. Before the voir dire had begun, a roll call of the expected witnesses showed that one witness for the State had not yet arrived. A deputy prosecutor remarked: “I don’t know what’s happened to him unless he’s gotten killed. He knew to be here.” Defense counsel moved for a mistrial. The motion was properly denied. As the trial judge observed, the remark was just a comment that had nothing to do with the trial and did not impute anything to anyone. The denial of another motion for mistrial is said to have been reversible error. During a noon hour a juror reported to the trial judge that he had received a telephone call during the preceding night. In chambers, in the presence of counsel, the juror was sworn and questioned. He said his phone rang at 1:16. The juror continued: They asked: “Are you Larry Davis?” I said: “Yes.” And the next words were either, “You better do good,” or “You better be good,” and I hung up before the sentence was completed. The juror did not know who it had been, but he said the voice sounded “gay.” (There had been some indication that the victim of the murder may have been gay.) The juror said that in his opinion the call did not affect his ability to decide the case fairly. “It doesn’t bother me at all that I got the call.” The juror said he had not mentioned the matter to the other jurors and was told not to do so. We perceive no abuse of the trial court’s discretion in its refusal to grant a mistrial. That drastic step should not be taken unless the possibility of prejudice cannot be removed by an admonition to the jury, or here to the juror. Cobb v. State, 265 Ark. 527, 579 S.W.2d 612 (1979). Here the trial judge was evidently impressed by the juror’s conscientiousness in reporting the matter. The judge was in a far better position than we to say whether the particular juror might be affected by the telephone call. Such incidents obviously cannot be prevented. For us to set aside the trial for what seems to have been the proper way to handle the matter might encourage such anonymous calls in the future. There is no substance to the argument that the trial court improperly restricted the defense in the cross-examination of two witnesses. The first was Zones. The defense had been provided with a written account of a social worker’s interview with Zones. The account reported Zones as having said that when he was fourteen he had stabbed a man and that all his life he had had a violent temper that led him to strike people and smash things. Defense counsel disclaimed any intention of asking Zones about the specific stabbing incident, but he did want to ask about Zones’s general statement, which the judge said he would permit. Counsel later asked Zones: “Have you ever made the statement that you have a very explosive and violent temper that leads to hitting and beating people?” Zones said, “No, sir,” and stuck to his position when the same question was asked two or three times. Counsel argues the point at some length in his brief, but the trouble is the absence of any specific complaint. That is, neither the abstract nor the brief sets forth any particular question that counsel was not permitted to ask. No error is shown. The second occasion occurred during counsel’s cross-examination of Ms. Bettis, Holland’s former girl friend. Counsel had elicited an admission from Ms. Bettis that the juvenile court had charged her with being a neglectful parent and that she was engaged in a legal battle about the custody of her children. The attorney later asked: “If Herman Holland is convicted of this charge or any other significant charge, I assume that that would remove one potential witness that you would have a problem with, wouldn’t it?” The court properly sustained the State’s objection, noting that the question was argumentative. Not only was the question argumentative; it contained unwarranted assumptions of fact on the part of the interrogator. In sustaining the objection the court did not abuse its discretion in controlling cross-examination. Before the trial, counsel filed a number of motions raising questions about the validity or application of our statutes relating to capital murder. These questions have been answered in several of our opinions and need not be explored once more. We are convinced by the record and the briefs that Holland was fairly tried and was convicted in accordance with the law. Affirmed. Purtle, J., not participating.

Robert H. Dudley, Justice. Appellant, Michael Hallman, is one of three men jointly charged with first degree murder in the death of Ivey Jones. In a joint trial, Randy Hallman and Arthur Dale Taylor were found guilty of first degree murder, while appellant was found guilty of second degree murder. They appeal separately and, in separate arguments, assign unrelated points of error. Accordingly, we hand down concurrent, but separate opinions. In this case, we affirm the conviction for second degree murder. On January 16, 1984, two hunters found the partially decomposed body of Ivey Jones in a remote section of Crawford County. The medical examiner estimated the date of death as December 8 or 9,1983, and found the causes of death to be a blow to the head with a blunt object and stab wounds through the back. On February 3, 1984, Arthur Dale Taylor, one of the three defendants, gave a statement implicating himself and two others in the murder. On February 7, 1984, the appellant gave an inculpatory statement. The statements were edited and admitted into evidence at trial. See Gammel v. State, 259 Ark. 96, 531 S.W.2d 474 (1976). Arthur Dale Taylor’s two edited statements are combined and summarized as follows: On the evening of December 8, nobody knew what we were doing except the three of us. We were in my 1972 Dodge Coronet. I was driving. I was told to tell Ivey Jones that a relative was coming from California. I stopped the car at Ivey Jones’ apartment. One of the others got out of the back seat and knocked on her apartment door and told Ivey Jones that her family was back and we were supposed to take her to the house. My understanding of the reason she was picked up was for her money. She got in the front right seat. The other two boys were in the back seat. One of the boys took a screwdriver and started hitting her in the head. I stopped the car. One of the boys pulled Ivey Jones out of the car and hit her on the head with a lug wrench. He then stabbed her with a knife. We got her out of the car and put her on the car trunk. We drove a short distance down the road and then dragged her into some bushes. We then went to my house trailer where I burned up my shirt because it had some blood on it and burned her shoes and purse. Somebody at my house asked me about the blood on my shirt. The statements constitute proof that Arthur Dale Taylor and two other males planned to obtain money from Ivey Jones. In furtherance of that plan they drove to her apartment where she was enticed into the car. She was then murdered. That proof alone does not implicate appellant. However, appellant gave two incriminating statements which are summarized as follows: I was with two male friends on the night of the murder. About three weeks before the murder my two friends were talking about robbing Ivey Jones. At that time, the plan was for me and a friend to spend the night at Ivey Jones’ house and leave either the door unlocked or the window up. On the night in question the three of us were driving around and thinking about robbing or burglarizing some place. They decided to break into Wal Mart Discount Store, but changed their minds. We then drove to the victim’s house. I did not know the reason we went to the victim’s house. I left the car, went to the victim’s apartment, and got her to join us in the car. Ivey Jones sat in the front right seat. One of the other two men then hit Ivey Jones on the head with a foot long screwdriver. I did not know that the other two intended to attack Ivey Jones. The victim was told they were at a hospital, and she either got out of the car or was lifted out when the other two men stabbed her with a knife and hit her on the head with a lug wrench. She was then placed on the hood or trunk of the car and taken to the place where her body was later found. The three of us then went to a trailer belonging to one of the men. I made some coffee and went outdoors to find that a fire had been built. The victim’s hat and purse were burned along with a bloody shirt of one of the other men. I did not tell anyone about the murder because I was afraid I could get the electric chair for it. Regina McGrew testified that on the evening of December 8, 1983, the appellant, Arthur Dale Taylor, and Randy Hallman drove to Arthur Dale Taylor’s house trailer in a blue Dodge automobile. Appellant went inside, got three cups of coffee and took them outside. They were drinking coffee and Arthur Dale Taylor took off his bloody shirt, poured gasoline on it, and set it on fire. Appellant’s principal point of appeal is that Arthur Dale Taylor was an accomplice and his statement was not sufficiently corroborated for a finding of guilt. The argument is without merit. The test for determining the sufficiency of corroborating evidence is whether, after totally eliminating the testimony of the accomplice, the other evidence independently establishes the crime and tends to connect the accused with its commission. Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983). It is not necessary that the corroborating evidence, standing alone, be sufficient to sustain the conviction. Orsini v. State, 281 Ark. 348, 665 S.W.2d 245, cert. denied,_U.S_, 105 S.Ct. 162 (1984). In appellant’s case, the testimony of the medical examiner corroborated the fact that someone killed Ivey Jones on December 8 or 9, 1983, by striking her on the head with a blunt object and stabbing her in the back. The testimony of Regina McGrew corroborated that appellant was in the presence of the accomplice and Randy Hallman on the evening of December 8, 1983. In addition, her testimony established that Taylor burned his blood-stained shirt while the appellant stood by. Most importantly, appellant’s statements corroborated that he knew there had been a discussion about robbing the victim and that he lured the victim into Taylor’s car where she was murdered. The corroboration is sufficient to sustain the conviction. The appellant was sixteen years of age at the time of trial. Before trial, he filed a motion to transfer his case to juvenile court pursuant to Ark. Stat. Ann. §§ 41-617 and 45-420 (Supp. 1985). At the hearing on the matter, the Prosecuting Attorney testified that he charged appellant in circuit court because of the seriousness of the crime, because appellant lured the victim away from her home, left her in a remote area although she may still have been alive, made no effort to help her, and participated in a coverup of the crime. The trial court stated that the Prosecuting Attorney had used sound judgment and denied the motion based on the factors discussed by the Prosecutor. The applicable statute, Ark. Stat. Ann. § 45-420, provides that the circuit court, in making the decision whether to retain jurisdiction or transfer the case to the juvenile court, shall consider: (a) the seriousness of the offense, (b) whether the juvenile is beyond rehabilitation, and (c) the juvenile’s prospects for rehabilitation. The appellant contends that the trial court erred by not considering all three elements of the statute in the decision not to transfer. Wehave previously rejected the contention. In Ashing v. State, 288 Ark. 75, 702 S.W.2d 20 (1986), we said: “there is no requirement in the statute that equal weight be given to each factor, or that proof on all factors must be against the [moving defendant] in order for the court to retain jurisdiction.” Appellant’s next assignment of error concerns the admission of photographs of the body of the victim. We find no error. In Prunty v. State, 271 Ark. 77, 607 S.W.2d 374 (1980) we stated: [E]ven inflammatory photographs are admissible in the sound discretion of the trial judge “if they tend to shed light on any issue or are useful to enable a witness to better describe the objects portrayed or the jury to better understand the testimony or to corroborate testimony.” Sumlin v. State, 266 Ark. 709, 587 S.W.2d 571 (1979); [citations omitted.] Whether or not the court should admit a photograph depends upon whether the asserted inflammatory nature is outweighed by its probative value; and neither is it rendered inadmissible merely because it is cumulative or unnecessary due to admitted or other facts proved. Here, the photographs corroborate and illustrate the testimony of the law enforcement officer who investigated the scene and the testimony of the medical examiner. Their inflammatory nature did not outweigh the probative values. The trial judge did not abuse his considerable discretion in determining that these photographs were admissible. The appellant next argues that the trial court erred in admitting his incriminating statements because he made the statements in reliance upon a promise of juvenile treatment, he never validly waived his right to remain silent, and his will was overborne by the officers. The Prosecuting Attorney and the police officers testified that no promise was made, appellant waived his right to remain silent, and the statements were made without coercion. Appellant and his mother testified that, at a meeting with the mother, the Prosecutor promised treatment as a juvenile if appellant would make a statement. A recording of the meeting with the mother contained no evidence of a promise. The trial court expressly found that no promise was made to appellant or his mother, that appellant waived his right to remain silent and never asked that the questioning be stopped. On appeal of a finding of voluntariness, this Court makes its own independent determination of the issue from the totality of the circumstances, but will reverse the trial court’s determination of the issue only if it is clearly erroneous. Lockett v. State, 275 Ark. 338, 629 S.W.2d 302 (1982). After making an independent examination of the testimony, we cannot say the trial court’s determination was clearly erroneous. Affirmed. Purtle, J., not participating.

Per Curiam. Appellee’s pro se motion to file a belated brief and for brief time is granted. Corbin, C.J., and Mayfield, J., dissent.

Beth Gladden Coulson, Judge. By felony information dated October 21,1985, the appellant, Kimmy R. Redding, was charged with three counts of delivery of a controlled substance. On December 20,1985, the appellant entered a plea of guilty as to each count and was sentenced to eight years imprisonment in the Arkansas Department of Correction and fined $1,000.00. A commitment order was filed that same day, and the appellant was remanded to the custody of the Montgomery County Sheriff’s Office. On January 2, 1986, some two weeks after the commitment order was filed and while in custody and awaiting transfer to the penitentiary, the appellant filed a motion to set aside his guilty plea. The trial court granted the motion and set the matter for trial. The appellant was convicted by jury verdict and was sentenced to ten years imprisonment and fined $10,000.00 on one count and placed on ten years probation on a second count. From that conviction comes this appeal. The appellant first argues that the facts of this case support the defense of entrapment and, additionally, that the court erred in denying a motion for change of venue. The appellant also argues that the court erred in granting his motion to set aside the guilty plea as the court was without the power to modify, amend or revise the original sentence because it lost jurisdiction over the matter once the appellant was remanded to the custody of the sheriff after the filing of the first commitment order. Although the State fails to address the first two points by conceding the third, we find the appellant’s arguments to be without merit and affirm. Entrapment is an affirmative defense, and the appellant had the burden of proving that defense by a preponderance of the evidence. Harper v. State, 7 Ark. App. 28, 643 S.W.2d 585 (1982). The appellant argues that entrapment was established as a matter of law, which is only true where there were no factual issues to be resolved by the fact finder. Harper, supra; Leeper v. State, 264 Ark. 298, 571 S.W.2d 580 (1978). On appeal, we review the evidence in the light most favorable to the State and will reverse only if there is no substantial evidence to support the jury’s verdict. At trial, the State introduced the testimony of an informant, Larry Wornick, who had approached the Montgomery County sheriff with an offer of information concerning drug operations in the county in exchange for a recommendation by the prosecutor’s office that Wornick’s sentence in an unrelated case be suspended. The sheriff testified that in addition to assistance on other cases, he wanted Wornick to attempt a purchase from the appellant (who had been under investigation by the sheriffs department for over two years). Wornick subsequently made repeated visits to the appellant’s residence. On or about August 17, 1985, he allegedly purchased marijuana from the appellant for $100.00, which sum was reimbursed by the sheriff. Thereafter, on August 28, 1985, a meeting was arranged involving Wornick, the sheriff, a deputy prosecutor, and two undercover officers. Wornick accompanied one of the undercover officers to the appellant’s residence to attempt another purchase. Wornick testified that upon arriving at the residence he approached the appellant, stated that he had someone in the car who was interested in purchasing marijuana, and asked whether the appellant wanted to meet that person. According to Wornick, the appellant responded in the affirmative. The trio then moved to the rear of the appellant’s residence where the appellant produced a large shopping bag containing marijuana. Wornick testified that the undercover officer purchased the contents from the appellant for $250.00, of which $50.00 was forwarded by the appellant to Wornick for his services in procuring a buyer. Wornick and the officer then left. Subsequently, the officer returned to the appellant’s residence on September 12, 1985, and purchased an additional quantity of marijuana for approximately $300.00. The appellant, according to the testimony, stated on several occasions that more marijuana would be available later. The appellant’s testimony was that Wornick frequently complained of a lack of funds and that he had loaned Wornick $200.00 as a favor. He then testified that Wornick left marijuana at the appellant’s residence because the police were watching Wornick’s home. The transaction on August 28,1985, according to the appellant, involved no more than a sale by Wornick to the officer of the marijuana which Wornick allegedly left at the appellant’s residence. The appellant’s receipt of the $200.00 from the sale was simply payment by Wornick for the earlier loan, with the extra $50.00 being returned to Wornick. Wornick testified that he had never delivered marijuana to the appellant’s residence and denied that the appellant had loaned him money. The jury was not required to believe the appellant’s testimony nor give it greater weight than that of any other witness. Harper, supra. The testimony of the undercover officer, which the appellant failed to abstract, corroborated that of the informant Wornick. We have no testimony concerning the events of the sale on September 12, 1985, because the appellant failed to abstract that portion of the record. Section (2) of our statute governing entrapment, Ark. Stat. Ann. § 41-209 (Repl. 1977), provides: Entrapment occurs when a law enforcement officer or any person acting in cooperation with him, induces the commission of an offense by using persuasion or other means likely to cause normally law-abiding persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment. Although more importance is attributed to the conduct of the law enforcement officers than to the predisposition of the defendant, the defendant’s conduct and predisposition, both prior to and concurrent with the transactions forming the basis of the charge, are still material and relevant on the question of whether the officers only afforded the accused the opportunity to commit the offense. Webber v. State, 15 Ark. App. 261, 692 S.W.2d 255 (1985). Conduct of the officers or informant merely affording the accused the opportunity to do that which he is otherwise ready, willing and able to do is not entrapment. Webber, supra. In the case at bar, on the issue of entrapment, several facts were in dispute. We therefore cannot say that the defense of entrapment was proved as a matter of law. Walls v. State, 280 Ark. 291, 658 S.W.2d 362 (1983). Viewing the evidence in the light most favorable to the appellee, as we must on appeal, we find substantial evidence to support the jury’s verdict on this issue. The appellant filed a petition for change of venue pursuant to Ark. Stat. Ann. § 43-1501 (Repl. 1977). The petition was based upon three articles printed in a local Montgomery County newspaper. The first set forth the charges filed against the appellant and noted his entry of a plea of not guilty. The second stated that the appellant had entered a negotiated plea of guilty and described his sentence. The third related that the appellant was subsequently to be given a trial in the matter. The articles were accompanied by others which reported the charges and pleas in drug related offenses committed by other defendants. The appellant argued that knowledge of his earlier plea of guilty, evidenced by publication in a widely circulated local paper, would preclude a fair trial in Montgomery County. A change of venue should be granted only when it is clearly shown that a fair trial is not likely to be had in the county. Richardson v. State, 292 Ark. 140, 728 S.W.2d 189 (1987). The burden of proof is on the defendant, and the decision of the trial court will be upheld unless it is shown that there was an abuse of the trial court’s discretion in denying the petition. Richardson, supra. The trial court heard the testimony of several witnesses, in addition to considering the affidavits in support of the petition, and concluded that the appellant could receive a fair trial in that jurisdiction. Under those circumstances, we review only the court’s exercise of its discretion. Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986). Section 43-1501 provides that any criminal case pending in any circuit court may be removed by order of the court to the circuit court of any other county whenever it shall appear “that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein.” Ark. Stat. Ann. § 43-1502 (Repl. 1977) requires that the application for removal by the defendant be by petition and be supported by affidavits. The appellant filed several such affidavits and introduced witnesses at the hearing on his petition. One of these witnesses stated that he had “signed something” but that “to tell you the truth, I didn’t even read it [the affidavit].” In response to the question as to whether the appellant could receive a fair trial in the county, he said: “Well, that I just don’t know.” The witness providing the strongest testimony for the appellant’s allegation was appellant’s mother. The State introduced testimony by numerous witnesses from various townships within the county to testify that they knew of no reason why the appellant could not receive a fair trial in Montgomery County. Our supreme court has held that there can be no error in the denial of a petition for change of venue if an examination of the jury voir dire shows that an impartial jury was selected and that each juror stated that he or she could give the defendant a fair trial and follow the instructions of the court. Richardson, supra; Berry, supra. Unfortunately, the appellant has failed to abstract the voir dire portion of the trial. A movant in a change of venue proceeding must demonstrate that countywide prejudice against him exists before his petition for change of venue will be granted. In view of the conflict in the testimony, we are unable to say that any abuse of discretion was shown. The appellant’s final argument is that the sentence originally imposed at the time he first entered a plea of guilty should be reinstated because the trial court was without power to grant his motion to withdraw the guilty plea (which led to the trial by jury) as the court lost jurisdiction of the matter after it imposed sentence, filed a commitment order, and remanded the appellant to the custody of the sheriff. We disagree. The argument is based upon a long line of cases which have firmly established that once a valid sentence is put into execution, the trial court is without jurisdiction to modify, amend or revise it. Coones v. State, 280 Ark. 321, 323, 657 S.W.2d 553, 555 (1983); Cooper v. State, 278 Ark. 394, 645 S.W.2d 950 (1983); Hunter v. State, 278 Ark. 428, 645 S.W.2d 954 (1983); Shipman v. State, 261 Ark. 559, 550 S.W.2d 454 (1977); Emerson v. Boyles, 170 Ark. 621, 280 S.W. 1005 (1928). Where the defendant has “entered upon the execution of a valid sentence,” the court loses jurisdiction over the case. Emerson, supra. Thereafter, any attempt to amend or revise the sentence is of no effect, and the original sentence remains. Williams, Standridge & Deaton v. State, 229 Ark. 42, 313 S.W.2d 242 (1958). We dispose of this final issue by first addressing a related matter. The appellant’s motion to set aside his guilty plea was filed pursuant to Rule 26.1 of the Arkansas Rules of Criminal Procedure. Such a motion is timely even if filed after the entry of judgment, if made with due diligence. However, our supreme court has stated that the motion “must be filed prior to sentencing.” Carter v. State, 285 Ark. 256, 685 S.W.2d 812 (1985); Rawls v. State, 264 Ark. 954, 581 S.W.2d 311 (1979). The supreme court has emphasized that trial courts can, in the exercise of their discretion, consider a Rule 26.1 motion any time before sentencing; but, thereafter, the motion must have been amended so that it can be treated as a motion under Rule 37. Shipman, supra. The appellant concedes that this was not done. On its face, therefore, the appellant’s motion to set aside his guilty plea appears to have been untimely, notwithstanding his argument as to jurisdiction, because the motion was filed two weeks after sentencing. Having said this much, we hasten to point out that the phraseology “before sentencing” is, at first glance, misleading. We find that the supreme court’s Shipman opinion actually establishes that a Rule 26.1 motion is not untimely, therefore not requiring amendment, until the sentence has been put into execution. “Such a Motion must necessarily be made under Rule 37, if the sentence has been carried into execution.” (Emphasis ours.) 261 Ark. at 563. As such, both the timeliness of the appellant’s motion, and his argument as to the court’s loss of jurisdiction, are controlled by a determination of when, under our laws, the appellant’s sentence was put into execution. Our cases clearly establish that sentences of imprisonment are not put into execution until the defendant is placed in the custody of the Department of Correction. In Nelson v. State, 284 Ark. 156, 680 S.W.2d 91 (1984), the supreme court found that the trial court was without jurisdiction to modify a particular sentence once the original sentence had been put into execution and “the sentence was put into execution because the appellant was placed in the custody of the Department of Correction.” (Emphasis ours.) 284 Ark. at 157. The rationale behind the court’s loss of jurisdiction is that the power to exercise discretion over a defendant’s sentence has passed to the executive branch of government. Nelson, supra; Charles v. State, 256 Ark. 690, 510 S.W.2d 68 (1974). The appellant’s argument that the trial court had lost jurisdiction must fail, therefore, because the motion to set aside the guilty plea was filed prior to the time that the original sentence was put into execution; namely, the appellant had not been transferred to the custody of the Department of Correction. For similar reasons, the appellant’s motion was timely under Shipman. That he was in the custody of the sheriff of Montgomery County does not change our holding, and we are not persuaded that Coones, supra, requires otherwise. In Coones, the supreme court found that the trial court was without jurisdiction once the appellant had been remanded to the custody of the sheriff and had served a portion of his sentence. However, the sentence was for a misdemeanor and it was the local jail where that sentence was to have been served; hence, it had been put into execution — which is not the case here. Although Williams, Standridge & Deaton, supra, states that the court loses jurisdiction once a defendant has served a portion of his sentence, the appellants in Williams were already serving time in the Department of Correction, and the case is therefore distinguishable. Although the issue of the trial court’s loss of jurisdiction over the appellant was not raised by the parties prior to taking this appeal, it is a general rule that subject matter jurisdiction is always open, cannot be waived or conferred by consent of the parties, can be questioned for the first time on appeal, and can even be raised by this court. Coones, supra. Having considered the issue of jurisdiction, we find no error and affirm. Affirmed. Cracraft and Jennings, JJ., agree.

Beth Gladden Coulson, Judge. Appellee and appellant were divorced on September 15, 1981. On March 16, 1984, the appellant filed a petition seeking indefinite suspension of the appellee’s visitation rights as to the parties’ minor child on grounds of alleged child abuse. After several hearings, orders were entered on December 3, 1985, and on June 19, 1986, providing for periods of supervised visitation and setting forth procedures for the normalization of visitation. From that second order comes this appeal. During the process of litigation, a contempt proceeding had been initiated against the appellant and appellant’s counsel for failure to permit visitation as ordered by the court. While not presiding at the contempt proceeding, the chancellor appeared as a witness against appellant and her counsel. The appellant argues that this mandated the chancellor’s recusal as to subsequent hearings on the merits of appellant’s original petition. In response to appellant’s motion that the chancellor disqualify himself, a special master was appointed by agreement of the court, appellant, and appellant’s counsel. Citing Rule 53(e)(2) of the Arkansas Rules of Civil Procedure, the appellant makes the additional argument that the chancellor erred in failing to adopt the special master’s report. We find the appellant’s arguments to be without merit and affirm. Disqualification of a judge is discretionary with the judge himself and will not be reversed absent an abuse of that discretion. Chancellor v. State, 14 Ark. App. 64, 684 S.W.2d 831 (1985). Judges are presumed to be impartial, and the party seeking disqualification bears a substantial burden in proving otherwise. In discussing Canon 3.C(1) of the A.B.A. Code of Judicial Conduct, this court has stated that when a trial judge sits as judge and as witness, the judge should disqualify himself in the proceeding because the required appearance of impartiality is destroyed. Elmore v. State, 13 Ark. App. 221, 682 S.W.2d 758 (1985). Yet, our decision in Elmore emphasized that the failure to recuse does not constitute reversible error where no showing has been made that the complaining party was prejudiced. 13 Ark. App. at 227. While the issue before us could be decided on that basis, we find it unnecessary to do so. An examination of the record clearly shows that appellant’s motion for recusal was followed by an agreement that the parties’ dispute be referred to a special master. This was done, according to the chancellor, “in the interest of fairness to everyone involved. I did not want any appearance of impropriety or prejudice. . . .’’Having agreed to submission of the matter to a special master — which by no means removed the court from its position of final authority — the appellant may not now argue that recusal by the chancellor was mandatory. See Campbell v. State, 281 Ark. 13, 660 S.W.2d 926 (1983), cert denied, 465 U.S. 1069 (1984). In arguing that the chancellor erred in subsequently failing to adopt the special master’s report, the appellant relies upon Rule 53(e)(2) of the Arkansas Rules of Civil Procedure, which provides: The court shall accept the master’s findings of fact unless clearly erroneous. Within 20 days after being served with notice of the filing of the report, any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as prescribed in Rule 6(c). The court after hearing may adopt the report or modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions. The rule requires that the court accept the master’s findings of fact unless clearly erroneous, and to the extent that the court adopts the findings, they are considered the findings of the court. Coyne v. Coyne, 9 Ark. App. 80, 654 S.W.2d 584 (1983). The special master’s report contained findings of fact followed by various recommendations. The appellee filed his objections to those recommendations as provided by Rule 53. During the subsequent hearing which formed the basis for the order of December 3,1985, the chancellor repeatedly stated that he had adopted the master’s findings of fact, but that one of the recommendations would be rejected; others were later modified to meet changed circumstances. What the appellant is actually challenging on appeal is the chancellor’s failure to follow the master’s recommendations. We find that the chancellor’s actions were in substantial compliance with Rule 53, and therefore find no merit to the appellant’s argument. Affirmed. Cracraft, J., and Jennings, J., agree.

George K. Cracraft, Judge. The sole issue presented by this appeal is whether the Arkansas Workers’ Compensation Commission erred in holding that the provisions of our compensation act require that, when a worker’s death arises out of his employment and his widow subsequently remarries and receives in one lump sum payment equal to 104 weeks compensation, the increase in benefits payable to her children on her remarriage is postponed until the end of the 104 weeks following the remarriage. We conclude that the Commission erred in not holding that the additional benefits payable to the children on the remarriage of the widow became due immediately and reverse and remand this case. The determination of death beneficiaries and the amount of the average weekly wage payable to each is controlled by Ark. Stat. Ann. § 81-1315 (Repl. 1976 and Supp. 1985), which provides in pertinent part as follows: (c) [Beneficiaries — Amounts.] Subject to the limitations as set out in Section 10 [§ 81-1310] of this Act, compensation for the death of an employee shall be paid to those persons who were wholly and actually dependent upon the deceased employee in the following percentage of the average weekly wage of the employee, and in the following order of preference. First. To the widow if there is no child, thirty-five percent (35%), and such compensation shall be paid until her death or remarriage. * * * Second. To the widow or widower if there is a child, the compensation payable under First above and fifteen percent (15%) on account of each child. Third. To one child if there is no widow or widower, fifteen percent (15%) for each child, and in addition thereto, thirty-five percent (3 5%) to the children as a class, to be divided equally among them. * * * (d) [Terminations of dependence.] In the event the widow remarries before full and complete payment to her of the benefits provided in Subsection (c), there shall be paid to her a lump sum equal to compensation for one hundred four (104) weeks, subject to the limitation set out in Section 10 [§ 81-1310] of this Act. * * * (g) Cessation of compensation to part. Upon the cessation of compensation under this section to or on account of any person the compensation of the remaining persons entitled to compensation for the unexpired part of the period during which their compensation is payable shall be that which such persons would have received if they had been the only persons entitled to compensation at the time of the decedent’s death. The maximum amounts of compensation payable to death beneficiaries is governed by Ark. Stat. Ann. § 81-1310(b)(C) (Supp. 1985), which provides that the compensation payable to the surviving dependents shall be sixty-six and two-thirds percent of the average weekly wage, but not to exceed $ 154.00 per week in the aggregate. The facts in this case were stipulated. Haril L. Ashby was fatally injured on June 11,1984. He was survived by a dependent widow and five children. Appellees accepted the claim as compen-sable and paid the maximum weekly benefits of $154.00 to the widow for her own use and that of her five minor children until the widow remarried. At the time of her remarriage, appellees paid the widow a lump sum equal to her proportionate share of compensation for 104 weeks pursuant to the provisions of § 81-1315(d). Appellees then began paying to the children weekly benefits in that amount they would have received for their benefit prior to their mother’s remarriage, contending that the increase in benefits provided for them upon her remarriage is postponed under the provisions of § 81-1315(g) to the end of the 104-week period. The appellant contended that the minor children were entitled to the increase in benefits immediately upon their mother’s remarriage. On these facts, the Commission found for the appellees as follows: After carefully reviewing the entire record de novo on appeal by claimant, we find the Administrative Law Judge correctly determined that claimant is not entitled to immediate maximum dependency benefits. ... If the widow’s proportionate share of the $154.00 weekly benefits (which has already been paid to her in a lump sum and represents 104 weeks of benefits) were redistributed to the five minor children now, the compensation payable to the deceased claimant’s dependents would be in excess of the maximum of $154.00 weekly, as limited by § 10(b)(C). Only after 104 weeks from the lump sum payment to the widow can her share be redistributed to the children without contravening the clear intent of the statute. [Emphasis in original.] We conclude that such a holding is contrary to both the letter and spirit of our compensation act. We find nothing in the act to support a conclusion that the legislature intended for the lump-sum payment to be treated as an advance of weekly benefits. The act clearly provides that the widow is to be paid weekly benefits until her remarriage. Worthy of note is the fact that the legislature did not state, as it easily could have, that upon remarriage a widow is to receive 104 weeks of compensation in a lump sum. Instead, the act provides that she is to receive a sum “equal to” 104 times the weekly benefits she had been receiving. There is nothing to indicate an intention that this payment be anything other than an additional benefit to compensate the widow for the loss of future weekly benefits occasioned by her remarriage, and we conclude that the reference to 104 weeks contained in§81-1315(d)was merely intended to serve as a basis by which to determine the amount of the sum to be paid to her. Nor do we find anything in § 81-1315(d) or (g) mandating that the increased payments to the subsequent beneficiaries be postponed. The statutes provide that the widow shall receive weekly benefits until she remarries. Upon remarriage, those payments terminate, and upon termination of those payments the minor beneficiaries’ increased benefits should become due and payable immediately. The provisions of the Workers’ Compensation Act are to be construed liberally in favor of the claimant in light of its beneficent and humane purposes, and all doubtful issues must be resolved in favor of the claimant. Crain Burton Ford Co. v. Rogers, 12 Ark. App. 246, 674 S.W.2d 944 (1984). The widow’s right to receive weekly benefits as a dependent of her deceased husband was terminated upon her remarriage. At that point, the death benefits were required to be reapportioned among the remaining dependents. The statute does not provide that the widow remain a dependent for two years after marriage. The intent of the act is to provide benefits for dependents of those employees killed or disabled in the course of their employment, and the fact that the legislature chose to give the widow an additional benefit upon her remarriage should not prevent the immediate reapportionment of weekly death benefits to the remaining dependents. In reaching its conclusion, the Commission has followed the decisions of the Texas and New Mexico courts in construing similar statutes in Freeman v. Texas Compensation Insurance Co., 603 S.W.2d 186 (Tex. 1980), and Employers’ National Insurance Co. v. Winters, 101 N.M. 315, 681 P.2d 741 (1984). However, we prefer to follow the rule adopted in State ex rel. Endlich v. Industrial Commission of Ohio, 16 Ohio App. 3d 309, 139 N.E.2d 1309 (1984); Yardley v. Montgomery, 580 S.W.2d 263 (Mo. 1979); and Builders Exchange, Inc. v. Workers’ Compensation Appeal Board, 64 Pa. Commw. 94, 439 A.2d 215 (1982), which appears to be more in tune with the spirit and intent of our legislation. Reversed and remanded.

Steele Hays, Justice. David Camp was convicted of committing incést with his minor stepdaughter, in violation of Ark. Stat. Ann. § 41-2403. He was sentenced to ten years imprisonment and a fine of $10,000. On appeal, we affirm the judgment. For reversal, Camp first argues that the trial court erred in refusing to direct a verdict of acquittal because there was no corroboration of the stepdaughter’s testimony. The argument is predicated on the wording of Ark. Stat. Ann. § 41-2403, reciting that a person commits incest if, being sixteen years of age or older, he purports to marry, has sexual intercourse with, or engages in deviate sexual activity with, a person he knows to be (a) an ancestor or a descendant; or (b) a stepchild or adopted child. Since the stepdaughter was sixteen years old when the sexual intercourse allegedly occurred, Camp argues that she could have been charged with incest under § 41-2403 as readily as he and, therefore, she is an accomplice whose testimony must be corroborated in accordance with Ark. Stat. Ann. § 43-2116, which provides that a conviction may not be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense. Camp cites Teel v. State, 129 Ark. 180, 195 S.W. 32 (1917), and Hicks v. State, 219 Ark. 528, 243 S.W.2d 372 (1951) for the proposition that if the incest “victim” is sixteen years old or older when the offense occurs then she is an accomplice if the act occurs with her consent. We are not persuaded by those cases, primarily because there was no proof the intercourse was with the consent of the stepdaughter, and ample proof to the contrary: the child was seven or eight years old when her mother married David Camp; she had lived in the same household with him for eight years in a parent-child relationship; her own father was dead; she testified that her stepfather, who was thirty-eight, told her younger sisters to stay at the house while he and the older girl went to the barn, where he began fondling her. After he had removed her blue jeans and under garments he had intercourse with her. When he had finished he told her she could go back to the house. The next morning she and her boyfriend ran away to his sister’s home in Florida “to get away from David.” She called her mother after a few days and agreed to come back when her mother told her “something would be done about it.” On her return she went directly to her minister where she told the minister and a social worker about the situation; after her return she stayed, not at home, but with friends. Finally, referring to the incident, she testified that that was the last time “she was going to put up with it.” Giving that proof its highest and strongest probative value, we can easily say the intercourse was not with her consent, and, accordingly, we conclude her testimony did not require corroboration. Johnson v. State, 288 Ark. 158, 702 S.W.2d 797 (1986). On the same premise appellant argues that Ark. Stat. Ann. § 41-2403 violates the due process clause and the equal protection clauses of the Fourteenth Amendment to the United States Constitution and Article 2, Section 18, of the Arkansas Constitution. Camp argues that had she been his natural sixteen year old daughter, the stepdaughter too could have been convicted of incest under § 41-2403 (a) for having sexual intercourse with an ancestor. It follows, he insists, that he cannot be convicted of incest without her corroboration of her testimony. But, as with the first point, the argument presupposes consent and, as we have already seen, we are unwilling to assume that critical fact when the proof plainly suggests the contrary. That the legislature chose sixteen years as the age of accountability for purposes of incest does not mean that it also intended that when an unwilling victim of incest is sixteen then corroboration is required. We cannot agree to write that into the statute on the facts of this case. Moreover, the Criminal Code specifically provides that one who is the victim of the offense is not an accomplice. See Ark. Stat. Ann. § 41-305 (Repl. 1977). The commentary states: (a) It seems clear that the victim of a crime should not be held as an accomplice in its perpetration, though his conduct in a sense assists in the commission of the crime. The businessman who yields to the extortion of a racketeer, the parent who paid ransom to the kidnapper, may be unwise or even may be thought immoral; to view them as involved in the commission of the crime confounds the policy embodied in the provisions; it is laid down, wholly or in part, for their protection. So, too, to hold the female an accomplice in a statutory rape on her person would be inconsistent with the legislative purpose to protect her against her own weakness in consenting, the very theory of the crime. Appellant notes that while § 41-2403 (a) covers descendants as well as ancestors, § 41-2403(b) applies only to stepparents, suggesting the language creates a dichotomy of criminal responsibility between stepchildren and natural children, as well as of corroborative proof as to stepparents and natural parents. We concede a distinction between persons in a step relationship, but, for reasons already discussed, we find no distinction between step and natural parents on the requirement of corroboration. In either case if the “victim” is in fact a victim, she, or he, is not an accessory. Ark. Stat. Ann. § 41-305. As to the supposed dichotomy between natural parents and stepparents, we are not persuaded that the disparate treatment of the statute is not intentional, or that it lacks a rational basis. The commentary to § 41-2403 points out that stepchildren and adopted children have been added to the crime of incest because society is as concerned with the integrity of the family, including step and adoptive relationships as well as those of blood relationships, and sexual activity is equally disruptive, whatever the makeup of the family. Indeed, this case presents a classic example of the impact of such offenses upon the family: the mother and stepfather are evidently estranged and living apart, the stepdaughter became a runaway to escape the situation and even on her return is living elsewhere, thus, the disruption of the family is complete. We are obliged to assume the legislature meant what it clearly said in § 41-2403, City of North Little Rock v. Montgomery, 261 Ark. 16, 546 S.W.2d 154 (1977), and it may have assumed that the incidence of adult stepchildren becoming victims of incest was rare enough to warrant exclusion from the coverage of the statute. At any rate, appellant has cited nothing to challenge the presumption of constitutionality of this statute, Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983), nor that a rational basis for the distinction noted does not exist. In Schock v. Thomas, Comm’r, 274 Ark. 493, 625 S.W.2d 521 (1981), we stated the rule: The equal protection clause does not require that all persons be dealt with identically; it only requires that classifications rest on real and not on feigned differences, that the distinctions have some relevance to the purpose for which the classification is made, and that the different treatment be not so disparate as to be arbitrary. United States v. Ecker, 543 F.2d 178 (1976); Walters v. City of St. Louis, 347 U.S. 231 (1954); Skinner v. Oklahoma, 316 U.S. 535 (1942). We do not reach appellant’s remaining argument — that the trial court wrongly refused to instruct the jury on the issue of corroboration — because the proferred instruction is neither in the abstract nor the record. Chapman v. State, 201 Ark. 91, 143 S.W.2d 575 (1940). Rule 11(f) Rules of the Arkansas Supreme Court and Court of Appeals. The judgment appealed from is affirmed. Newbern, J., concurs. Purtle, J., not participating.

David Newbern, Justice. The appellant was convicted of murder and arson, and he received sentences of forty and twenty years, respectively, for those offenses. We reversed the conviction in an opinion rendered upon rehearing. Richardson v. State, 283 Ark. 82, 671 S.W.2d 164 (1984); reh. granted, 283 Ark. 91, 678 S.W.2d 772 (1984). The appellant was retried and was again convicted, receiving sentences identical to those received in the first trial. The issues the appellant raises are whether evidence seized from him, after an arrest he contends was unlawful, should have been excluded and whether violation by the police of some of our rules of criminal procedure should result in exclusion of evidence seized. We hold the evidence was improperly admitted, and thus we reverse. The facts are discussed generally in our original opinion and in the opinion issued upon granting rehearing. We will summarize them here with emphasis on only those bearing on the issues presented. The appellant was observed at the fire the night his uncle’s dwelling burned, and there was testimony the appellant was at that time drunk. The following morning Deputy Sheriff Rowe was dispatched to pick up the appellant, the appellant’s father who was decedent’s brother, and the woman living with the appellant’s father. Rowe testified that the appellant was not intoxicated when he was taken to the sheriffs office. The appellant’s father testified the appellant smelled of alcohol when they were picked up, and the appellant testified he had been drinking since early that morning. The appellant and the others were taken to the sheriffs office where they waited in the lobby. Deputy Ellenburg, a relative of the appellant, observed the appellant making frequent trips to the bathroom. He said the appellant had a strong odor of alcohol on his breath and he became talkative and “jittery.” Ellenburg did not wish to participate in the case because of the family relationship, so he told Deputy Simpson he thought the appellant was drinking and “he needed to check him down and see.” Simpson, who was working with state police investigator Davidson, who was in charge of the murder and arson investigation, searched the appellant and found an empty whiskey bottle in his boot. Deputy Simpson arrested the appellant for public intoxication. An inventory search pursuant to the arrest yielded some .22 caliber shells and a Winchester and Western shotgun shell with number 6 shot in addition to the empty bottle. Medical evidence showed the decedent to have been killed by a shotgun blast with number 6 Winchester and Western shot, and a shotgun containing a spent Winchester and Western number 6 shell was found in the ruins of the decedent’s home. Simpson testified that while the appellant was under arrest for public intoxication, Davidson advised Simpson “that we needed to get his clothes and take (them) to the crime lab.” Simpson had the appellant change clothes and then gave the appellant’s clothes to Davidson who had them examined. The laboratory examination revealed there was blood on the appellant’s boots and shirt. The blood on the boots was of the same type as that of the decedent according to a serologist’s report which was introduced in evidence. The appellant moved to have all the items obtained in this search suppressed on the basis that there was no probable cause to arrest him for public intoxication and the search was thus incidental to an illegal arrest. The court denied the motion stating: The court will make a specific finding that the defendant was not intoxicated at the time that he was brought into the sheriffs office, that he became intoxicated at the sheriffs office. . . or at least there is probable cause for that arrest. That would constitute an intervening offense and we have testimony to support that. . . strong evidence to support that from the state police investigator and from Deputy Rowe. I find that the arrest was made with probable cause and the search was therefore pursuant to the arrest. The problem here is whether the arrest for public intoxication was a pretext for conducting the search of a person who was a suspect in a murder and arson investigation. No distinct rules for defining a pretextual arrest have been articulated. Pretext must be a matter of the arresting officer’s intent, and that must be determined by the circumstances of the arrest. As the District of Columbia Circuit Court of Appeals said in McKnight v. United States, 183 F.2d 977 (D.C. Cir. 1950): The Supreme Court has specifically held that “an arrest may not be used as a pretext to search for evidence.” United States v. Lefkowitz, 285 U.S. 452, (1932). In upholding the search in the Harris case the Court pointed out that it was not “a case in which law-enforcement officers have entered premises ostensibly for the purpose of making an arrest but in reality for the purpose of conducting a general exploratory search for merely eviden-tiary materials tending to connect the accused with some crime.” Harris v. U.S., 331 U.S. 145, 67 S. Ct. 1098 (1947). It is settled law that “when it appears, as it does here, that the search and not the arrest was the real object of the officers in entering upon the premises, and that the arrest was a pretext for or at the most an incident of the search,” the search was not reasonable within the meaning of the Constitution. Henderson v. United States, 12 F.2d 528 (4th Cir. 1926). Some courts have stated that they would disallow facially valid searches conducted incident to arrests which have been made solely as a pretext to conduct a search. In these cases, the search is the real purpose of the police and the arrest, usually on a minor offense or traffic infraction, is merely a subterfuge to obtain the search authority ancillary to the arrest. As stated in Brown v. State, 442 N.E.2d 1109 (Ind. 1982), “the issue of pretext arrest only arises when the surrounding circumstances show that the arrest is only a sham being used as an excuse for making a search for evidence of a different and more serious offense for which no probable cause exists.” After discussing the question, that court affirmed the convictions for rape and robbery because the arrest for minor drinking was made based upon the observation of the offense by a plainclothes officer and the admission by the defendant that he had been drinking. After his arrest and with the advice of counsel who was aware that he was a suspect in the rapes Brown consented to the search where the challenged evidence was found. The court found those factors sufficient to overcome the pretext allegation. In State v. Haven, 269 N.W.2d 849 (Minn. 1978), a drug conviction was overturned on the pretextual arrest of Haven on two outstanding traffic warrants and the search of his automobile incident to that arrest. Overturning the conviction, the Minnesota court stated, “the state concedes the warrants upon which Haven’s initial arrest was predicated were fatally deficient .... Even if the arrest warrants had been technically perfect, however, the pretextual nature of the arrest made the subsequent search of the defendant’s vehicle constitutionally imperfect.” The court went further to say “a pretext arrest to permit an otherwise unauthorized search is not one of [the exceptions to the requirement of a valid warrant].” The pretext argument overturned drug convictions in United States v. Carriger, 541 F.2d 545 (6th Cir. 1976). After conceding they did not have probable cause for the arrest of a suspected drug supplier, a drug enforcement agent entered a locked building through a door left open by workmen following a known drug dealer and arrested the known dealer and the suspected supplier after observing a suspicious transaction. The court said, assuming arguendo probable cause to arrest the dealer, his arrest cannot be used as a pretext to arrest Carriger who was a suspected supplier for whom they had no probable cause for arrest. The court said “several other circuits have also condemned the tactic of circumventing the Fourth Amendment requirements by manipulating the time of a suspect’s arrest to coincide with his presence in a place where government agents wish to search.” Amador-Gonzales v. United States, 391 F.2d 308 (5th Cir. 1968), involved an automobile arrest for minor traffic violations. The officer acknowledged he was looking for narcotics. Critical for our purposes here, scrutiny of the record revealed no disposition of the charges. In suppressing the evidence obtained pursuant to the traffic arrest the court cited cases and language which clearly mandated this result. “General or exploratory searches are condemned even when they are incident to a lawful arrest.” U.S. v. Rabinowitz, 339 U.S. 56 (1950). “The arrest must not be a mere pretext for an otherwise illegitimate search.” McKnight v. U.S., 183 F.2d 977 (D.C. Cir. 1950). “The search must have some relation to the nature and purpose of the arrest.” Taglavore v. U.S., 291 F.2d 262 (9th Cir. 1961); Charles v. U.S., 278 F.2d 386 (9th Cir. 1960). See, J. Hall, Jr., Search and Seizure, § 8:10, p. 240 (1982) (Supp. 1985). Pretext in this case can be found from the fact that the search had no relation to the nature and purpose of the arrest. Deputy Simpson testified that after placing the appellant in the cell he was advised by investigator Davidson to get the appellant’s clothes so they could go to the crime laboratory. No one had at that point looked to discover the absence or presence of blood on the boots. The state had the good judgment not to argue that an arrest for public intoxication is a reasonable predicate for a laboratory examination of clothing. Pretext can also be found from the fact that each of the law enforcement officials testified that the appellant could not have left the station because he was a suspect in the murder and arson investigation even at the time he was brought to the police station. We note at this point the appellant’s contention that Ark. R. Crim. P. 2.3 was violated. That rule requires police to take such steps as are reasonably necessary to make it clear “to a person requested to appear at a police station that he has no legal obligation to comply.” The officers who were asked on the witness stand whether they had complied with this rule stated that they had not. In Lascano v. State, 275 Ark. 346, 631 S.W.2d 258 (1982), failure to comply with Rule 2.3 was raised as an issue but was not determinative of the case because no objection was made at the trial. In obiter dicta in the decision upholding the conviction the court said “the argument of failure to warn pursuant to Rule 2.3 and failure to give Miranda warnings before asking routine investigatory questions is not persuasive. No evidence at the scene implicated the appellant and there is no indication Sergeant Fogley regarded her as a specific suspect.” In this case it is clear that the appellant was at the sheriff’s office because he was a suspect in the arson and murder investigation, not for routine investigatory purposes, and the failure to comply with the rule along with the officer’s testimony he could not leave is revealing of that fact. The authority to search incident to an arrest depends wholly upon the lawfulness of the arrest. If the arrest is lawful, i.e., based upon probable cause, the search is lawful. U.S. v. Robinson, 414 U.S. 218 (1973). Our opinion on rehearing reversing the first conviction closed with the following penultimate paragraph expressing concern about this arrest: Since the case is being remanded, the trial court should rehear the issue of appellant’s arrest to determine whether there was probable cause to support the arrest for public intoxication, independent of murder and arson charges. In that regard, appellant’s condition at the time he was picked up is of significant importance in evaluating the totality of the circumstances surrounding the arrest. Also, the cir cumstances under which appellant was brought to the police station are important, especially whether A. R. Crim. P. 2.2, 2.3, and 3.1 were followed. The degree of inebriation at the time of arrest is a relevant consideration. All of these circumstances should be weighed in determining whether appellant’s September 1 statement and other evidence seized should be admitted. Richardson v. State, 283 Ark. at 91-C & D (1984). While the trial court did part of what we asked and found probable cause to have arrested Richardson on the public intoxication charge, it did not satisfy our concern with respect to the violation of Ark. R. Crim. P. 2.3 and 3.1. Rule 2.3 provides: If a law enforcement officer acting pursuant to this rule requests any person to come to or remain at a police station, prosecuting attorney’s office or other similar place, he shall take such steps as are reasonable to make clear that there is no legal obligation to comply with such a request. No officer complied with the positive duty prescribed by this rule. The reason there was no compliance was that the officers, according to their testimony, would not have released the appellant had he asked to be released. Thus there was also a violation of the detention limit posed by Rule 3.1. Regardless of whether we can technically justify the arrest on the charge of public intoxication, we can find no justification whatever for these rules violations. The appellant was clearly being held because he was suspected in the murder and arson case. The officers had a duty to charge him with that offense or let him go. Their failure to do so put them in violation of the rules mentioned and the realization of those violations makes it even clearer that the arrest which occurred was carried out as a pretext to permit the search. This Court has held squarely that evidence obtained in an inventory search conducted at a jail pursuant to an unlawful arrest is inadmissible. Webb v. State, 269 Ark. 415, 601 S.W.2d 848 (1980); Rowland v. State, 262 Ark. 783, 561 S.W.2d 304 (1978). The evidence obtained pursuant to the arrest for public intoxication must be suppressed. We regret that this case must again be reversed. The state argues that even if we find reversible error in admitting the evidence in question we should affirm because there is no prejudice in view of the other strong evidence against appellant. The state’s brief refers to these facts: (1) the appellant and the victim had been on “bad terms;” (2) the appellant was the first to report the fire; (3) the appellant, while witnessing the fire, said the victim was inside the burning house; (4) bottles of beer like ones he said he had delivered earlier that day to the victim were found in the appellant’s house; (5) appellant had been seen carrying a shotgun like the one found in the home of the victim; (6) an empty W & W number 6 shotgun shell box was found in the appellant’s home; (7) the appellant had told neighbors he was just going to have to kill the victim; and (8) the appellant made some incredible statements to neighbors about having been wounded in a gun battle inside the victim’s home the night of the fire. While we agree this is strong evidence against the appellant, we cannot say it is of the overwhelming sort that would justify us in ignoring the illegally admitted evidence. The sad fact is that most if not all of this evidence would have come into the hands of the police authorities without the appellant’s arrest for public intoxication and could eventually have been the basis of a lawful arrest which would have produced the same evidence obtained here by pretext. Reversed. Purtle, J., not participating. Hickman and Hays, JJ., dissent.

Steele Hays, Justice. On the evening of Friday, August 12, 1983, the nude body of Linda Cruce was found in a rural area of St. Francis County. The sheriff’s office began an investigation, obtaining information that the appellant, Jim Duke Roderick, had been seen with Linda Cruce several times leading up to the discovery of the body. On Monday evening, August 15, having heard the sheriff wanted to talk to him, Roderick came to the sheriff’s office at about 7:00 o’clock where he was arrested, given the Miranda warnings and placed in a jail cell. Sometime around midnight Roderick sent word that he wanted to talk and he gave a statement which implicated him in the murder. He said when he and Linda left the Razorback on Thursday evening she wanted to go to the Legion Club; when he told her he didn’t have any more money she called him a “no good bum.” He said he struck her with the heel of his hand on her neck and she slumped over. He drove to a secluded spot, removed her clothes and had sex with her. Afterwards he realized she was not breathing, so he left her body nearby and threw her clothes and purse in the river near Big Eddie’s Hill. Roderick was tried, convicted and sentenced to life without parole, which brings this appeal. He presents a number of points of error, one of which is persuasive and requires reversal. Roderick argues that because there was no probable cause for his arrest his statement should have been suppressed. The argument must be sustained. Probable cause to arrest without a warrant exists when the facts and circumstances within the officers’ collective knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been committed by the person to be arrested. Coble v. State, 274 Ark. 134, 624 S.W.2d 421 (1981); Brinegar v. United States, 338 U.S. 160 (1949); Carroll v. United States, 267 U.S. 132 (1925). A.R.Cr.P. Rule 4.1. It has been held not to require that degree of proof sufficient to sustain a conviction. McGuire v. State, 265 Ark. 621, 580 S.W.2d 198 (1979). Its determination is based on factual and practical considerations of prudent men rather than of legal technicians. Sanders v. State, 259 Ark. 329, 532 S.W.2d 752 (1976). However, a mere suspicion is not enough. Wong Sun v. United States, 371 U.S. 471 (1963). Even a “strong reason to suspect,” will not suffice. Henry v. United States, 361 U.S. 98 (1959). With that background, we find probable cause in this case to be plainly lacking. Three officers testified: Sheriff Coolidge Conlee, Chief Deputy Evan Hughes and Deputy Chuck Thomas. Their proof, separately or combined, failed to add up to more than a bare suspicion. The substance of their information was that Roderick, who was having marital problems, was seen on Wednesday and Thursday nights drinking beer with the victim at the Crazy Horse Saloon and at the Razorback Club. There was a report that they were “shacking up.” The two were last seen together leaving the Razorback at about 9:00 or 9:30 on Thursday evening, August 11. On the evening of August 12 the victim’s body was found off Barrow Hill Road near Lake St. Francis. We think the information of the officers at the time Roderick was arrested fails to rise to the level of probable cause. Given its strongest import, it amounts to little more than that the two were seen together in public, which can hardly translate into probable cause to charge Roderick with murder. The point is best illustrated by the testimony of the officers themselves: Officer Thomas, who was in charge of the investigation, testified candidly that there was nothing in his investigation that led him to believe Roderick had committed the crime at the time of his arrest. Sheriff Conlee’s testimony provides no help, as he said there was nothing to tie Roderick to the crime at the time of his arrest except that he was the last person to be seen with Linda Cruce. Sheriff Conlee’s tacit acknowledgement that probable cause was wanting is found, we believe, in his admission that Roderick was not charged with any crime on Monday evening when he was undeniably arrested, but was charged simply with “suspicion of murder.” The sheriff said he was “only a suspect” until he gave his statement sometime after midnight on August 16. There is, of course, no crime known as “suspicion of murder,” and one who is merely suspected of a crime, while subject to a brief detention (A.R.Cr.P. Rule 3.1), is not subject to arrest. The testimony of Officer Hughes adds nothing not already mentioned. The state points out that when Roderick came to the Sheriffs office on Monday evening he denied knowing Linda Cruce. But that did not come out until Roderick testified at the trial, and even when that element is added to the remaining proof, it comes up short. Whatever Roderick’s initial statement may have been, it obviously was not regarded by the officers as significant because none of them mentioned it in the suppression hearing. It is their knowledge at the moment of arrest that determines whether probable cause exists. Beck v. Ohio, 379 U.S. 89 (1964). For the reasons stated, we find there was no probable cause to arrest Jim Duke Roderick on Monday evening. “Arrest on mere suspicion collides violently with the basic human rights of liberty.” Henry v. United States, supra, p. 101. That brings us to the collateral issue — is the statement Roderick gave after midnight tainted by his unlawful arrest? The state has a heavy burden of proof in this case. It must prove that the statement, made while Roderick was in custody, was not only voluntary, Harvey v. State, 272 Ark. 19, 611 S.W.2d 762 (1981), but that there was no causal connection between the statement and the illegal arrest. Brown v. Illinois, 422 U.S. 590 (1975). Dunaway v. New York, 442 U.S. 200 (1979). Those determinations are made upon the totality of the circumstances at the time the statement was given. Fuller v. State, 278 Ark. 450, 646 S.W.2d 700 (1983). On appeal that evidence is reviewed independently of the trial court’s findings as to the issue of voluntariness. Hunes v. State, 274 Ark. 268, 623 S.W.2d 835 (1981). As to the illegal arrest, it has long been the rule that statements, like objects, are to be excluded as evidence if they are found to be the fruits of an unlawful arrest. Wong Sun v. United States, 371 U.S. 471 (1963). In Brown v. Illinois, supra, the Supreme Court reversed a holding by the Illinois Supreme Court that the giving of the Miranda warnings following an illegal arrest operated as an intervening cause to purge the primary taint of the unlawful arrest. The United States Supreme Court observed: It is entirely possible . . . that persons arrested illegally frequently may decide to confess, as an act of free will unaffected by the initial illegality. But the Miranda warnings, alone and per se, cannot always make the act sufficiently a product of free will to break, for Fourth Amendment purposes, the causal connection between the illegality and the confession. Thus, whether the confession or statement is an act of free will must be answered on the facts of each case: “the temporal proximity between the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct are all relevant” (Brown v. Illinois, supra, at pp. 603-604). By that standard we believe this statement should not have been admitted. The clear lack of probable cause, tacitly conceded by the officers, the fact that Roderick was jailed merely on suspicion and told to “think it over,” the lapse of only a few hours between the arrest and the statement, weigh against the premise that the statement was voluntary. Coupled with those elements is the testimony by Roderick he was alternately threatened with being locked up in the hole (where he would “never see daylight again”) and coaxed with assurances of assistance. We need not weigh the pros and cons of that disputed testimony, it is enough to note the state failed to demonstrate that the illegal arrest and the ensuing statement were separate and independent of each other. Thus the state has failed in its burden of proof and, accordingly, the statement should have been suppressed. The remaining points are rendered moot by this reversal, but those that could arise again will be addressed for purposes of another trial. Roderick complains that he was denied the right on voir dire to ask three questions of prospective jurors: 1) the juror’s reaction to claims by the sheriff that there had been no unsolved murders during his tenure as sheriff; 2) the juror’s reaction to the verdict in the trial of John DeLorean, and 3) how the juror might describe the defendant to a spouse or close friend. We do not find the questions so plainly appropriate that we are prepared to say the trial court’s discretion was abused. Sanders v. State, 278 Ark. 420, 646 S.W.2d 14 (1983). Nor do we think the refusal of the trial court to permit the taking of discovery depositions by the defense was an abuse of discretion. Hoggard v. State, 277 Ark. 117, 640 S.W.2d 102 (1982). Roderick insists the charge of capital murder should have been reduced to first degree murder because there was no evidence rape occurred while Linda Cruce was alive. We disagree. From the proof as a whole we think the jury could have inferred that the underlying reason for the murder was rape or attempted rape, either of which would support the charge. Ark. Stat. Ann. § 41-1501 (Repl. 1977). Another argument is the court erred in refusing to instruct the jury on negligent homicide. We note that the trial court did instruct on first degree murder, second degree murder and manslaughter. We think the jury was properly instructed on the proof presented. We disagree with Roderick that the trial court erred in disallowing the introduction of a portion of the transcript from another trial in Wynne, Arkansas, in which Roderick was a witness. The trial involved criminal charges for the theft of a truck in Memphis which Roderick contends occurred on the night of August 11, 1983, the night Linda Cruce was murdered. Roderick was a witness for the state against the defendants, testifying that together they had stolen the truck. Roderick submits the state relied on Roderick’s credibility in the Wynne trial and he is entitled to show that to the jury in this trial. The trial court rejected the proof on grounds of relevancy, and we are not in a position to dispute that ruling. The proffer does not show that the theft occurred on August 11, or in such a manner as to categorically exclude Roderick from involvement in the homicide of Linda Cruce. The relevance of evidence rests largely on the discretion of the trial court, subject only to limited review. We find no error. Firestone Tire & Rubber Co. v. Little, 276 Ark. 511, 639 S.W.2d 726 (1982). The other arguments: the denial of a motion for a continuance; an asserted conversation between Officer Hughes and James Taylor, who testified ahead of Hughes, concerning the type of questions asked, in violation of the court’s instructions; and the seating of three jurors over defense objections that they should have been excused for cause, should not arise again and warrant no discussion. We take this opportunity, however, to mention a juror whose brother was a regular deputy sheriff of St. Francis County at the time of this arrest and trial. The defense insists the juror should have been excused for cause. The statutes on implied and actual bias don’t reach this exact situation and while we recognize the difficulty of forging a standing rule to meet marginal problems, we appreciate the defendant’s position that he ought not to have to use a peremptory challenge on a prospective juror whose brother works for the sheriff. When the sheriff is an obvious partisan, as might be expected, and is actively involved in the investigation, arrest and trial, it is difficult to conceive how this juror could be wholly oblivious as to how her vote might impact on her brother’s standing. Without second guessing the trial court on this issue, we think some liberality in applying the statute on implied bias would be in order. That was done in the second trial of Paul Ruiz and Earl Denton, and we affirmed. Ruiz and Denton v. State, 273 Ark. 94, 617 S.W.2d 6 (1981),and see Henslee v. State, 251 Ark. 125, 471 S.W.2d 352 (1971). The judgment is reversed and the cause remanded to the trial court. Purtle, J., not participating.

George Rose Smith, Justice. This is a second appeal. In 1983 the appellants Charles and Sharon Bliss, husband and wife, were separately charged with the rape of Sharon’s son, who was seven or eight years old when the acts occurred. The child was Charles’s stepson. The original informations charged each defendant with rape by sexual intercourse or by deviate sexual activity. The two cases were consolidated before the first trial, at which the jury found each defendant guilty of rape. Upon the first appeal we held that the trial judge had erred in not requiring the prosecutor to file a bill of particulars and in not recusing with respect to a motion to suppress a search conducted on the authority of a warrant issued by the judge himself. Bliss and Bliss v. State, 282 Ark. 315, 668 S.W.2d 936 (1984). On remand the prosecutor promptly filed a bill of particulars, charging Charles with rape by deviate sexual activity and Sharon with rape by sexual intercourse or by deviate sexual activity. At a second trial the defendants were again found guilty. Each was sentenced to life imprisonment and a $15,000 fine. Eight grounds for reversal are argued in the appellants’ brief. We perceive no prejudicial error in the points that are presented or in any other objection abstracted for our consideration. The sufficiency of the evidence not being questioned, we need not narrate the testimony in detail. The State’s proof showed that the criminal acts extended over a substantial period of time. Both defendants engaged in deviate sexual acts with the child, and Sharon also had sexual intercourse with her son. Eventually the child was placed in the custody of his own father. The first point for reversal, applicable only to Sharon, and a second point, applicable to both appellants, present the same misconception of law and may be answered together. It is argued on the authority of Clayborn v. State, 278 Ark. 533, 647 S.W.2d 433 (1983), that rape by sexual intercourse and rape by deviate sexual activity are two separate crimes. Hence it was error, Sharon insists, for the trial court to submit to the jury the charge of rape by sexual intercourse “and/or” by deviate sexual activity. Both defendants argue that the second trial constituted double jeopardy, because it is impossible to determine from the jury’s general verdicts at the first trial which form of rape the jury found each defendant to have committed. Therefore, it is contended, the second jury may have found each guilty of a crime of which he or she had been found not guilty at the first trial. The fallacy in these arguments is that rape, as defined by our statute, is not two different crimes. It is one crime that may be committed by two different acts. Comparably, an autopsy of a murder victim’s body might disclose a stab wound and a gunshot wound, either of which may have been fatal if inflicted in quick succession. Obviously the State could list both possibilities in a bill of particulars, and the jury could be instructed accordingly. Here the prosecuting attorney, in filing the required bill of particulars, put the defendants on notice of his position: “The State contends that there is only one crime of rape under the statutory law of the State of Arkansas, and that the crime of rape can be committed either [by sexual intercourse or by deviate sexual activity]. The State contends further that an alternative or disjunctive charging of the crime of rape by either sexual intercourse or deviate sexual activity is adequate, proper and sufficient notice to the defendant so charged.” There follows a request that the jury be so instructed, which was eventually done. The prosecutor’s position was correct. Two months after that bill of particulars was filed in the trial court we took a similar position in Wood v. State, 287 Ark. 203, 697 S.W.2d 884 (1985). We put the matter finally at rest in Cokeley v. State, 288 Ark. 349, 705 S.W.2d 425 (1986), expressly overruling the Clayborn decision, supra. Thus the defendants were fully informed of the State’s position before the trial. The two arguments for reversal are without merit. Two other points urged by the appellants may be discussed together. In our first opinion we held that Judge Ford should not have presided at the motion to suppress. He actually granted the motion — an action that was favorable to the defense — but the State was allowed to introduce on rebuttal a number of photographs that were discovered during the search. None of those photographs were offered at the second trial. Before the retrial, defense counsel asked for a hearing on the motion to suppress the evidence seized during the search. This time the State did not contest the motion. Judge Ford offered to have another judge sign an order granting the motion, but that did not satisfy defense counsel. She insisted upon a hearing, so that she could be certain about what had been discovered during the search. The judge pointed out that he could not compel the State to produce evidence with respect to a motion it was not contesting. There was a mild exchange of remarks between Judge Ford and defense counsel, during which the judge said to her that his remarks might be prejudicial “if you were on trial, but you are not on trial.” During that colloquy defense counsel made an oral request that Judge Ford recuse for the whole case. The request appears to have been made solely as a result of the colloquy. The judge observed that his remarks had been invited. The request for recusal was not granted. Our study of the record convinces us that there was no reason for Judge Ford to grant counsel’s oral motion that he recuse from the entire case. Rather to the contrary, the judge exhibited a great deal of patience in the matter. There is no instance in which it is suggested that he acted with unfairness toward the two defendants. In the related point it is argued that since there was no hearing on the motion to suppress, counsel could not be sure in advance that the State would not introduce evidence obtained during the search. A complete answer is that no such evidence was in fact introduced or even offered. Evidence discovered during the search would necessarily have been tangible, not testimonial, but the only four exhibits introduced by the State were three juvenile court orders and a custody agreement. It would be pointless for us to order a new trial on the basis of a fear that never materialized. In the appellants’ fifth point it is argued that three jurors should have been excused for cause. The statute provides that an attorney and client relationship may be a basis for a finding of implied bias. Ark. Stat. Ann. § 43-1920 (Repl. 1977). One juror said that her husband and son had been represented by the prosecuting attorney in a property matter, and another said the prosecutor had represented her adult daughter two years earlier. The trial judge did not abuse his discretion in denying the challenges for cause, for the jurors did not appear to be biased. A third juror was married to a police officer, but she served only as the alternate juror and did not participate in the deliberations. No error is shown. The court properly denied a request that the two defendants be tried separately. At the first trial they were tried together with no suggestion of any resulting prejudice. Their defenses were not antagonistic, being general denials that the rapes took place. Neither defendant chose to testify. The argument in favor of a severance is unsupported by reference to any specific fact indicating that either defendant suffered prejudice from the joint trial. A seventh point, concerning asserted misconduct on the part of jurors, hardly deserves discussion. After the trial the defense filed a motion for a new trial, attaching three affidavits. Two of the affidavits had no real substance. The third said that during a lunch hour the affiant had heard two jurors discussing a witness, about whom one juror made a derogatory remark. The court conducted a hearing at which both the jurors testified. They denied any impropriety and explained the incident to the court’s satisfaction. Their testimony was practically undisputed, as the affiant was not called to contradict it. No prejudicial error appears. In the final point it is asserted that the court allowed the State to introduce inadmissible hearsay evidence. A youthful witness for the prosecution, Daniel Matheny, admitted on cross examination that he had not told the truth when he first talked to a police officer. On redirect examination the court permitted him to explain that his parents had not wanted him to come to Arkansas to testify, because they said he had been emotionally disturbed by his exposure to sexual experiences at the Blisses’ home. The court permitted the testimony, not to show that his parents’ statements about his sexual experiences were true, but only to show that the statements had been made, explaining his motive in not telling the officer the truth. The court’s ruling was correct. A statement is not inadmissible as being hearsay if it is not offered to prove the truth of the matter asserted. Uniform Evidence Rule 801(c); Jackson v. State, 274 Ark. 317, 624 S.W.2d 437 (1981). Since the testimony was admissible for one purpose, the defendants’ objections were insufficient without a specific request that the court instruct the jury to consider the testimony only for its admissible purpose (to show motive). Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981). There was no request for such a limiting instruction. Affirmed. Purtle, J., not participating. Dudley, J., concurs.

Darrell Hickman, Justice. This is an annexation case. The City of Russellville sought to annex 4,150 acres of contiguous lands. The area sought to be annexed encompasses three irregular tracts of land in the western part of the city, extending Russell-ville’s boundaries uniformly to Lake Dardanelle and the Arkansas River. The city already touched these bodies of water in several places. An election was held and the annexation was approved by a vote of 571 to 210. Several landowners contested the annexation. They alleged the areas were not proper for municipal purposes because they consisted of farmland, swampland and open and unimproved land. After the trial, the court dismissed the complaint, finding the land suitable for annexation. We agree. A city may annex lands which are either (1) platted and held for sale or use as municipal lots; (2) whether platted or not, if the lands are held to be sold as suburban property; (3) when the lands furnish the abode for a densely settled community, or represent the actual growth of the municipality beyond its legal boundary; (4) when the lands are needed for any proper municipal purposes such as for the extension of needed police regulation; or (5) when they are valuable by reason of their adaptability for prospective, municipal uses. Ark. Stat. Ann. § 19-307.1 (Repl. 1980). The lands sought to be annexed must meet one of these five criteria. Holmes v. City of Little Rock, 285 Ark. 296, 686 S.W.2d 425 (1985). If a part of the proposed area does not meet one of the requirements, then the annexation of the entire area is voided in toto. Gay v. City of Springdale, 287 Ark. 55, 696 S.W.2d 723 (1985). All three tracts are west of Highway 7 which divides the city, running north and south. The first tract is north and west of the existing city, encompassing Bona Dea Trails Park. The second tract is the largest, extending the city limits to the Russellville Boat Dock, encompassing a growing residential section. The third tract lies south of the existing city and takes in existing industrial and commercial sites and land along the Arkansas River. The landowners first argue that some of the land is swampland which runs into a wooded area, and as such, is not suitable for municipal purposes. We held in Holmes v. City of Little Rock, supra, that annexation is not prohibited simply because a tract is rather rugged or heavily wooded with sparse population; the value of the land is derived from its actual and prospective use for city purposes. The landowners next argue and it is conceded that the annexation contains some farmland. There was an abundance of testimony in this case that all the land being annexed was best suited for residential and commercial purposes rather than for agricultural purposes. Before 1975 lands used for agricultural purposes could not be annexed. Act 309 of 1975 amended the law to provide that agricultural lands could not be annexed if their highest and best use is for agricultural purposes. We interpreted this amendment in Gay v. City of Springdale, supra, and held that the prohibition against annexing agricultural lands is no longer absolute. The lands may be annexed if their highest and best use is for a purpose other than agriculture. Generally, there was other testimony that some of the lands are being held as suburban property. There are several subdivisions being developed in the area west of the city due to the city’s residential growth in that direction. The mayor testified that the city can adequately provide police and fire protection, animal control, street lights, water and sewage service, and the lands are needed for orderly growth and development. The chief of police and fire chief testified that the annexation would assist with police and fire protection because in some places the city limits could not be determined. The annexed land would even the city’s boundaries, advancing them to natural or man-made boundaries, such as highways. The trial court made specific findings of fact, including findings that much of the lands represent the actual growth of the city beyond its legal boundary; the lands are needed for extension of police and fire protection; the lands are valuable by reason of their adaptability for prospective municipal purposes; and although some acreage is presently used for agricultural purposes, the highest and best use of these lands is for purposes other than their present use. On appeal our decision is limited to determining if these findings are clearly wrong. ARCP Rule 52, Holmes v. City of Little Rock, supra. They are not in this case. For all practical purposes, we overruled Saunders v. City of Little Rock, 257 Ark. 195, 515 S.W.2d 633 (1974), with our decision in Holmes v. City of Little Rock, supra, and Gay v. City of Springdale, supra. We rejected the narrow approach we took in Saunders where we upheld the voiding of the proposed annexation of 55 square miles to the City of Little Rock. We no longer have that constrained approach to annexation cases. To that extent, Saunders is overruled. Affirmed. Purtle, J., not participating.

David Newbern, Justice. In this divorce appeal the appellant raises three points with respect to the division of the parties’ property. He contends the chancellor erred by (1) considering his potential military retirement pay as marital property, (2) treating as marital property items acquired after the parties separated, and (3) calculating the appellee’s interest in the retirement pay on the basis of what the appellant will receive upon his retirement, thus giving the appellee the benefit of “enhancement” of his retirement pay which occurred before and after their marriage. By “enhancement” the appellant presumably means increases in the retirement pay which result from longevity and promotions. We find no merit in these arguments, and thus we affirm. 1. Pension Is Marital Property In Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984), we recognized the error in Paulson v. Paulson, 269 Ark. 523, 601 S.W.2d 873 (1980), which held a military retirement pension was not marital property. In Young v. Young, 288 Ark. 37, 701 S.W.2d 374 (1986), we held clearly that prospective military retirement pay is marital property. 2. Date of Division The divorce was awarded in 1985 on the basis of three years separation. The parties had separated in 1981. The appellant contends, without citation of authority, that some of the assets should not have been divided by the chancellor because they were acquired by him after separation and before divorce. We note, however, that the decree purported to divide all personal property “used by either [appellant or appellee] as household goods. . . .” The decree also contained the following: Any further real estate interests owned by either party or any identifiable interest in the personal property or stock in trade of the Defendant in her business enterprise known as the “Emporium” in Fairfax, Virginia, or any equity therein, is ordered divided fifty percent to each party. The “Emporium” is the business in Virginia where the appellee has worked since the separation. The chancellor thus chose the date of divorce as the date upon which to ascertain what the marital property of the parties was although some of it had apparently been acquired while the parties were still married to each other but living separately. Our statute, Ark. Stat. Ann. § 34-1214 (A)(1) (Supp. 1985), clearly requires “distribution” of marital property at the time the divorce is entered. We hold it was not an abuse of the chancellor’s discretion to ascertain the extent of marital property and evaluate it as of that date as well. 3. Retirement Pay The court held that when the appellant begins receiving his retirement pay from the Army the appellee will be entitled to one-half of a fractional interest in each retirement payment. The fraction will have a numerator of twelve, the number of years the parties were married during his military service. The denominator will be the number of years the appellant has served upon retirement. For instance, if he retires with twenty-eight years of service, the appellee will be entitled to one-half of 12/28 of his military retirement pay. The appellant says the flaws in the formula are three-fold. First, it gives the appellee the benefit of enhancement of the retirement pay which occurred during the appellant’s first eleven years of service when he was not married to the appellee. Second, it gives her the benefit of the enhancement which occurred between the date of separation and the date of divorce. Third, it gives her the benefit of the enhancement which will occur between the date of divorce and the appellant’s retirement. The formula used by the trial court seems to accord with that used in Young v. Young, supra. There we approved awarding the spouse of a military retiree one-half of 17/20 of the retirement pay. In that case, the retirement had occurred during the marriage, and the parties had been married to each other for seventeen of the twenty years of military service. As stated above, we hold it was within the chancellor’s discretion to evaluate the assets of the parties as of the date of divorce, thus we are not concerned with the period of enhancement of the military pension between the date of separation and the date of divorce. The argument as to the pre- and post-marital enhancement is beguiling but not sound. The appellant cites no authority other than our decision in Marshall v. Marshall, 285 Ark. 426, 688 S.W.2d 279 (1985), for his proposition that the chancellor erred in this respect. He quotes the second headnote from our official reporter as follows: “Pension benefits based on contribution or services not made during the marriage constitute the separate property of the recipient.” The opinion in that case, however, said and held only that the spouse of an employee entitled to a pension would be entitled to a “proportionate share.” 285 Ark. at 429, 688 S.W.2d at 281. The case was remanded for a determination of what that share would be. After reviewing many cases involving distribution upon divorce of a prospective military or other pension, we conclude the chancellor in this case was correct. The only support we have found for the appellant’s position is a dissenting opinion in Van Loan v. Van Loan, 162 Ariz. 272, 569 P.2d 214 (1977), where the dissenting justice contended the wife of a military person should not get the benefit of the enhancement of her husband’s military pay which occurred after the divorce. 569 P.2d at 217. The majority in that case refused to consider the argument because it had not been raised in the trial court. We might well take that approach here, because the record does not show any argument whatever was presented to the trial court with respect to the enhancement of the appellant’s pension before or after the marriage. We are willing to go further in approving the chancellor’s decision, however, because we would affirm it even if the argument had been made below. The task of the court is to ascertain the value of the prospective military pension as an asset of marital property. Section 34-1214 requires that it be divided with fifty percent to each party unless other considerations stated in the statute make other than equal division more equitable. If Colonel Askins retired tomorrow or had retired on the day of his divorce, as he is and was eligible to do, under the chancellor’s formula Mrs. Askins would have been limited to a percentage of his base retirement pay determined as of that date. That is and was in Colonel Askins’s power to determine. If he had retired the day of the divorce and then gone to work for a company with a new retirement program, Mrs. Askins would not have been entitled to participate in the new retirement benefits. However, she is entitled to a percentage of whatever his military pension may be because that is the asset to which she contributed. We are in no position to say, especially given the record before us, that Mrs. Askins’s contribution to the pension was any less because she was married to Colonel Askins in the middle of his career than it would have been had she been married to him for, say, the last twelve years of it. The enhancement of the ultimate retirement pay may be most dramatic at the end, but the record before us contains no evidence of that, and none whatever of military pay scales. Even if such evidence were in the record, we could not say with assurance that Mrs. Askins’s entitlement, based on her contributions to the marriage, should be less than, as in the example above, 12/28 of the pay expected. While no cases we have found, other than the one containing the dissenting opinion cited above, have gone into this “enhancement” discussion, many have approved a formula like that used by the chancellor in this case. See, e.g. Le Clert v. Le Clert, 80 N.M. 235, 453 P.2d 755 (1969); Cearley v. Cearley, 544 S.W.2d 661 (Tex. 1976); Woodward v. Woodward, 656 P.2d 431 (Utah 1982). See also Annot. 94 A.L.R. 3d 176 (1979 and Supp. 1985). Had the chancellor decided not to divide equally the proportion of retirement benefits based on the twelve years of marriage, and had he stated good reasons as required by § 34-1214, we would have affirmed. The statute gives the chancellor that broad discretion. It is not the intent of the statute or this opinion to tie the chancellor to any specific formula for dividing prospective retirement benefits. See Addis v. Addis, 288 Ark. 205, 703 S.W.2d 852 (1986). Affirmed. Purtle, J., not participating.

Per Curiam. Appellant, Johnny Lee Tubbs, by his attorney, David H. McCormick, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to his miscalculation of the ninety-day limit for filing the record in this Court. See Ark. R. App. P. 5(a). We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam dated February 5, 1979, 265 Ark. 964; Terry v. State, 272 Ark. 243 (1981). A copy of this opinion will be forwarded to the Committee on Professional Conduct. Purtle, J., not participating.

Per Curiam. In July, 1985, appellant filed a pro se petition for writ of habeas corpus in the trial court on the ground that he had been denied due process and equal protection of law by being twice denied release on parole. The trial court concluded that a writ of habeas corpus was not the proper remedy to challenge the parole board’s action and dismissed the petition. Appellant filed a notice of appeal and lodged the record. He now requests appointment of counsel. The motion is denied and the appeal dismissed. A petition for writ of habeas corpus is restricted to the questions of whether the petitioner is in custody pursuant to a valid conviction and whether the convicting court had proper jurisdiction. Bargo v. State, 279 Ark. 180, 650 S.W.2d 227 (1983); Mitchell v. State, 233 Ark. 578, 346 S.W.2d 201 (1961). As a writ of habeas corpus is not a remedy for attacking parole decisions, appellant could not prevail on appeal. For this reason, there is no good cause to appoint counsel or to continue with the appeal. Motion denied & appeal dismissed. Purtle, J., not participating.

George Rose Smith, Justice. This is a petition by the appellant, now Eva Jean Etheridge, for a change of custody of the parties’ two children. The chancellor denied the petition, finding that there had been no change of conditions calling for the requested modification of the divorce decree. Mrs. Etheridge’s appeal comes to this court under Rule 29(l)(c). The parties were married in 1971 and divorced in April, 1984. The court granted custody of the children to the father, subject to specified visitation privileges. In the latter part of 1984 Shaddock began living with his first cousin, Anna Frank Delozier, who was getting a divorce. After that divorce was granted the two cousins married in Arkansas, not knowing that such a marriage is prohibited by Arkansas law. Ark. Stat. Ann. § 55-103 (Repl. 1971). In July, 1985, the present petition was filed, alleging the incestuous marriage as a ground for a change of custody. Shaddock and his cousin promptly had their marriage annulled in Arkansas and made a trip to Texas for the sole purpose of remarrying there, such marriages not being prohibited by Texas law. The appellant’s arguments are presented as three points for reversal, but essentially the single contention is that the appellee’s remarriage was a sufficient basis for a change of custody. We have no doubt that the Arkansas policy against incest is so strong that we would not recognize the validity of a marriage, even if performed in another state, between very close blood relatives, such as a father and daughter or a brother and sister. The majority view, however, in states forbidding a marriage between first cousins, is that such a marriage does not create “much social alarm,” so that the marriage will be recognized if it was valid by the law of the state in which it took place. Leflar, American Conflicts Law, § 221 (3d ed. 1977). In the case at bar the chancellor was right in relying on our decision in State v. Graves, 228 Ark. 378, 307 S.W.2d 545 (1957). That case involved a marriage between a 17-year-old boy and a 13-year-old girl, which was then declared by statute to be “absolutely void.” Act 32 of 1941. The young couple, accompanied by the boy’s father and the girl’s parents, had gone to Mississippi for the marriage, where it was valid. After their return to Arkansas a charge of contributing to the delinquency of the minor girl was filed against the boy and against the girl’s parents. The trial court, without a jury, found the defendants not guilty. The State appealed. In affirming the judgment we emphasized the fact that we had no statute declaring such an underage marriage to be void when performed elsewhere. To the contrary, our policy is ordinarily to give effect to a marriage that was valid in the state where it was performed. The heart of our decision is to be found in the closing paragraph of the majority opinion: The celebration of a marriage gives rise to many ramifications, including questions of legitimacy, inheritance, property rights, dower and homestead, and causes of action growing out of the marital status. We have no statute which provides that marriages such as the one involved here, celebrated in another state, are void in the State of Arkansas. We see no reason to elaborate upon a line of reasoning that is still good. The chancellor was right. Affirmed. Purtle, J., not participating.

Donald L. Corbin, Chief Judge. This appeal comes from the Pulaski County Chancery Court, Fourth Division. Appellant, General Agents Insurance Company, appeals the court’s order granting a reformation of an insurance policy issued by appellant to Sonny Roswell, d/b/a Roswell Used Cars, to include liability coverage. We affirm. Appellee, the St. Paul Insurance Company, sued to reform an insurance contract to require the issuing company, appellant, to add garage liability coverage for Sonny Roswell, Individually, and Sonny Roswell, d/b/a Roswell Used Cars. The facts were stipulated by the parties. Sonny Roswell, Individually, and Sonny Roswell d/b/a Roswell Used Cars, was a customer of Mathis-McClellan Insurance Agency, an insurance agency in Little Rock, Arkansas. The St. Paul Insurance Company was the errors and omissions insurance carrier for Mathis-McClellan. Mathis-McClellan would place Roswell’s insurance needs with companies, such as Lloyd’s and appellant, by acting through an insurance broker, Arkansas All Risks. Lloyd’s and appellant are surplus lines carriers and subscribers to surplus lines insurance policies issued by the M.G.A. Agency. Mathis-McClellan had no binding authority with appellant or Lloyd’s. In order to place, renew or amend coverage with those companies, Mathis-McClellan would obtain information required by those companies for underwriting purposes and submit such information to Arkansas All Risks. Arkansas All Risks was, at all times relevant hereto, a general agent for appellant. Mathis-McClellan acted as a soliciting agent for appellant with respect to submitting the request for renewal on behalf of Roswell. Mathis-McClellan had no written or oral agency contract with appellant or Arkansas All Risks. Appellant and Arkansas All Risks did encourage and solicit agents such as Mathis-McClellan Insurance Agency to submit applications for insurance with them. From September 25, 1980, through April 29,1981, Lloyd’s Insurance Company, under Policy #LGL 101 215, insured Roswell Used Cars with open-lot and garage liability coverage. Roswell procured this policy through Mathis-McClellan, which acquired the policy through the insurance broker Arkansas All Risks, Inc. This coverage was renewed to be effective April 29, 1981, to June 11, 1981. The policy initially contained no garage liability coverage. During the policy term Mathis-McClellan requested such coverage be added to the policy. Before the expiration of the Lloyd’s insurance policy, Roswell requested that his insurance coverage be renewed. Mathis-McClellan Insurance Agency caused to be issued General Agents Insurance policy #GLA 105814, issued by appellant, to be effective June 11,1981, to June 11, 1982. Mathis-McClellan again procured this policy through Arkansas All Risks, Inc. Mathis-McClellan failed to request that Arkansas All Risks include garage liability coverage and Arkansas All Risks bound the coverage that was requested by Mathis-McClellan. The General Agents policy contained the notation that it was a renewal of the prior Lloyd’s policy. On January 20,1982, a collision occurred in Pulaski County, Arkansas, between a vehicle owned by Southern Investment Company and a vehicle owned by Roswell, d/b/a Roswell Used Cars, and being driven by Edward A. Lamb. Thereafter, Roswell made demand upon appellant through Mathis-McClellan to defend any claims and indemnify for any damages arising out of the incident. Appellant denied coverage, advising that the garage liability coverage which existed under the prior Lloyd’s policy was not within the ambit of Policy #GLA 105 814. The parties also stipulated that the prior Lloyd’s insurance policy, as subsequently endorsed, did provide coverage that would have covered the damages resulting from the accident occurring on January 20, 1982. Appellant stipulated that it would have provided the coverage on the same terms as the Lloyd’s policy, had the proper premium been paid and if the risk was acceptable. Roswell, d/b/a Roswell Used Cars, paid insurance premiums, which were financed through a bank or through Mathis-McClellan, and Roswell had no personal knowledge of the exact annual premium. Roswell relied on Mathis-McClellan Insurance Agency to provide the same coverage that was provided under the Lloyd’s insurance policy. Neither appellant nor Arkansas All Risks had any direct contact with Roswell, they dealt exclusively with Mathis-McClellan. Roswell, either individually or through Mr. Bobby Carrier, an employee, had requested that Mathis-McClellan renew coverage on the same terms as the prior Lloyd’s coverage. As a result of the January 20,1982, collision, a lawsuit was filed against Roswell that resulted in a jury verdict against Roswell Used Cars in the amount of $827.04 for James Elliott, $4,787.00 to Leon B. Bush, Jr., and $63,000.00 to Edward J. Powell. In addition, prejudgment interest in amount of six percent per annum was assessed on the property damages claims. The judgments by all other individual plaintiffs have been satisfied by the St. Paul Insurance Company. In addition to the stipulated facts, certain facts were developed through depositions which were made a part of the record for consideration by the court. The policy that is to be reformed in this action clearly states on its face that it is a renewal of the prior Lloyd’s policy. The Lloyd’s policy provided the necessary coverage to protect the insured. All parties to this action moved for a summary judgment. The only issue in this case is one of law, i.e., whether, under these undisputed facts, appellee, as the liability insurance carrier for Mathis-McClellan, was entitled to have the insurance policy reformed to contain liability coverage. Appellant argues three points for reversal of the trial court’s reformation of the policy: (1) There was no mutual mistake of the parties in issuance of appellant’s policy; (2) the negligence or mistake of Mathis-McClellan is not imputable to appellant, since Mathis-McClellan had no authority to bind coverage for appellant; (3) reformation was improper to be applied to a new and separate contract issued by a separate carrier from the carrier who initially insured the risk. We find that this case is controlled by the case of American Casualty Co. v. Hambleton, 233 Ark. 942, 349 S.W.2d 664 (1961), which held that it is the duty of an insurer to issue a renewal policy on the same terms and conditions as the original contract, and, if it fails to do so, the renewal policy may be reformed to give effect to this result. In Hambleton, where the insurer did not notify the insured that the renewal differed from the original policy, the insured’s personal representative was entitled to have the renewal policy reformed. In Hambleton, a partnership procured through an insurance agent, George Walker, a workers’ compensation policy covering all employees of the partnership. The partners themselves were not employees within the policy. However, by a special endorsement on the policy, the partners were included in the coverage and paid an additional premium for that coverage. The following year the partnership renewed its policy with the same coverage of the partners and the additional premium was paid. The next year the partnership ordered the policy renewed and the agent, Walker, ordered a renewal contract from the insurance company. A policy was forwarded to Walker. This policy did not include the coverage for the partners and Walker did not know the contents of the policy and did not explain the change of coverage to the partners. One of the partners was fatally injured while operating a tractor for the partnership. The administratrix of the deceased partner’s estate brought an action against the insurance company requesting that the policy be reformed to include coverage for the partners in accordance with the coverage of the policies of prior years. The Arkansas Supreme Court held as follows: “An insurance policy, like any other contract, which by reason of mistake in its execution does not conform to the real agreement of the parties, may be reformed in a court of equity,” Phoenix Insurance Company v. State, 76 Ark. 180, 88 S.W. 917 [Citing Thompson v. Insurance Co., 136 U.S. 287, 10 Sup.Ct. 1019, 34 L.Ed. 408; Snell v. Insurance Co., 98 U.S. 85, 25 L. Ed. 52; Jamison v. State Insurance Co., 85 Iowa 229, 52 N.W. 185.] The renewal of an insurance policy is basically nothing more than the moving of the terminal date to a later time and if the appellant [the insurer] saw fit for any reason to vary the terms of the policy it had been requested to renew, the duty was clearly upon it to advise the insured of the changes which had been made, [citation omitted] “An insurance policy may be reformed even after the loss insured against, so as to express the parties’ real intent. Since it is the duty of an insurer to issue a renewal policy on the same terms and conditions as the original contract, if it fails to do so, the renewal policy may be reformed to give effect to this result. This is true though the insured did not read the policy and discover a material change until after occurrence of the loss. It may, however, be discretionary with the court as to whether to grant or deny relief on the ground of the plaintiff’s neglect to discover the change sooner.” Id. at 944-947, 349 S.W.2d at 666-668 (citation omitted). In the case at bar, we find that appellant is estopped by reason of its nondisclosure. The policy clearly states on its face that it is a renewal of the Lloyd’s policy. The parties stipulated that the Lloyd’s policy included liability coverage. Appellant had a duty to notify the insured that the coverage was changed on the renewal policy. It has been established by the facts in the record that no notice of change was given. Therefore, appellant is estopped from asserting the absence of liability coverage in the renewal policy. Appellant’s argument, that there was no mutual mistake, is based on the fact that the application for insurance submitted by Mathis-McClellan requested dealer’s open lot and driveway collision, and it did not request liability coverage. In its brief, appellant states that it is undisputed that Roswell asked Mathis-McClellan for liability coverage but Mathis-McClellan, through mistake or neglect, failed to write that on the renewal application. Appellant agreed that Mathis-McClellan is appellant’s soliciting agent, however, appellant argues that, as a soliciting agent, Mathis-McClellan had no authority to bind appellant. Appellant’s argument does not convince us that Hambleton should not apply to this case. Where the facts have been truthfully stated to the soliciting agent, but, by fraud, negligence, or mistake, are misstated in the application, the company cannot set up the misstatements in avoidance of its liability, if the agent was acting within his real or apparent authority and there is no fraud or collusion on the part of the insured. Southern National Insurance Co. v. Heggie, 206 Ark. 196, 174 S.W.2d 931 (1943). There is no evidence of fraud or collusion in this case and appellant stipulated that Mathis-McClellan was appellant’s soliciting agent. Therefore, appellant is estopped from asserting the absence of a request for liability coverage in the application. We find no merit in appellant’s argument that the renewal policy was a separate contract issued by a separate carrier. The policy clearly states on its face that it is a renewal of the Lloyd’s policy, which policy did contain the necessary coverage. The fact that it was issued by appellant does not preclude application of the rule in Hambleton. For the reasons stated above the trial court’s order granting reformation of the policy is affirmed. Affirmed. Cooper and Mayfield, JJ., agree.

George K. Cracraft, Judge. Lester T. Alexander appeals from an order of the chancery court of Jefferson County denying his petition for reduction in alimony and child support payments, holding him in contempt, and ordering him confined until he brought himself into compliance with the court’s previous orders. We find no error and affirm. The parties were divorced on October 9, 1985, by a decree which directed the appellant to pay a certain amount of child support and alimony every two weeks. It also approved a property settlement agreement, in which the appellant agreed to make the payments on the home mortgage until the happening of certain events. At the time the property settlement and decree were entered, the appellant was working as a physician in the Jefferson County Comprehensive Care Center at a salary of in excess of $5000.00 per month. At all times pertinent to the issues here, the appellant was aware that his contract with the care center would expire on July 15, 1986, at which time he expected to enter into private practice, and that he expected to be, and was, married on the day after the decree was entered. Shortly after the decree was entered, the appellant was ordered to show cause why he had not complied with that part of the order directing him to make payments on the house. The court found that appellant had obligated himself to make those payments in the property settlement agreement and was fully aware of that obligation. However, as it had not been included in the court’s order, he was not held in contempt but ordered to make those payments in the future. He failed to do so. Subsequently, the appellant petitioned the court to relieve him of his court-ordered obligations because he was soon to enter into private practice and needed the monies he was obligated to pay for child support, alimony, and the house payments for expenses in his new venture. On May 1,1986, the court denied his petition on finding that there had been no change in circumstances warranting such a modification. In October of 1986, the appellee again instituted contempt proceedings to compel the appellant to comply with the order with regard to child support, alimony, and payment of the house mortgage. The appellant cross-petitioned, again seeking modification of the amounts and an abatement of the obligations until he could establish himself in practice. Despite the court’s ruling on May 1, the appellant admitted he had made no mortgage payments since March 15, 1986, and had paid no alimony or child support for the months of August or September. In his defense, he testified that, since the termination of his employment with the care center on July 15, he had earned only $2000.00, all but $150.00 per month of which had gone toward the payment of overhead expenses. The chancellor found that the appellant knew at the time he entered into the property settlement agreement and at the time the decree was entered that he would cease to be employed at the clinic on July 15, and was aware of all other facts that affected his ability to pay the amounts imposed upon him in the order and the agreement, including the fact that he would remarry the day after the decree was entered. The chancellor announced that he would deny appellant’s petition to modify the agreement, determined that he was willfully in arrears on his court-ordered obligations in an amount in excess of $4000.00, held him in contempt, and ordered him confined until he brought himself in complete compliance with the orders of the court. We find no error. Appellant first argues that the trial court erred in not modifying the decree because orders providing for maintenance and support are always subject to modification by the application of either party on a showing of a change of circumstances. He argues that his remarriage and decrease in income both constituted bases for a reduction in his court-ordered obligations. We agree with the appellant’s argument that the court does have the power to modify its decree in this regard upon a showing of change of circumstances. We do not agree, however, that it is compelled to do so in every such instance, particularly where, as here, the changes were fully anticipated at the time of the initial order. The appellant argues that, even though he did know that those events would occur, he was unaware that there would be an inability to charge increased fees for his services. The court was not required to believe the testimony with regard to his income. Statements of his accountants were conflicting and contained a number of self-admitted errors in both calculations and information on which they were based. In any event, there was testimony from other physicians that the freeze on certain types of fees had been in effect for a period in excess of two years and was in no way unforeseen. From our review of the record, we cannot conclude that the trial court erred in refusing to modify the decree with regard to the court-ordered child support and alimony. The appellant next contends that it was error for the court to order him coercively imprisoned under the circumstances of this case. We do not agree. The power of a chancery court to order imprisonment in contempt proceedings as punishment for violation of its orders, to coerce obedience to its orders for the benefit of its litigants, or a merger of the two, cannot be disputed. Dennison v. Mobley, 257 Ark. 216, 515 S.W.2d 215 (1974). In the present case, the order of the court was intended to coerce compliance with its previous orders. The court had a clear right to do this subject to the following limitations upon that power contained in East v. East, 148 Ark. 143, 146, 229 S.W. 5, 6 (1921): But imprisonment is, as was said by Judge Riddick, speaking for the court in Ex Parte Caple, 81 Ark. 504, “only justified on the ground of wilful disobedience to the orders of the court, and, so soon as it is made to appear that the defendant is unable to comply with the orders of the court, he should be discharged.” The imprisonment cannot be made perpetual for recalcitrancy; and when it becomes manifest that further punishment will not compel obedience, then it is the duty of the court to refrain from further punishment, otherwise it would convert the exercise of the court’s power into an instrument for imprisonment for debt or would constitute imposition of unusual and cruel punishment. This rule has also been applied in our federal courts. There it has been held that the basis for permitting a court summarily to order coercive imprisonment for recalcitrant individuals without affording the safeguards of a criminal proceeding is that the contemnors hold the keys to their prison in their pockets, in that they may purge themselves of contempt at any time. They hold that, although when confinement for civil contempt has lost its coercive force and no longer bears a reasonable relationship to the purpose for which the contemnor was committed, due process may require that the contemnor be released, this does not mean that as a matter of due process a court may not initially order the person to be confined until he complies with the court’s order or meets his burden of establishing that there is no substantial likelihood that continued confinement would accomplish its coercive purpose. See, e.g., Shillitani v. United States, 384 U.S. 364 (1966); Maggio v. Zeitz, 333 U.S. 56 (1948); In re Grand Jury Investigation, 600 F.2d 420 (3rd Cir. 1979). The appellant does not argue that the law is otherwise. He contends that the evidence does not establish that the noncompliance was willful but merely that it was the result of his inability to comply. We find no merit in his argument. On February 6,1986, the court entered an order clarifying its previous order, and the property settlement on which it was based, and commanding the appellant to make the payments due on the house until certain events occurred. Although the chancellor found that the appellant was fully aware that he was required to make those payments, he did not find appellant in contempt simply because the conditions were not specifically spelled out in any written order of the court. Thereafter the appellant admitted that he paid only one-half of the house payment due for the month of March, and made no part of those payments for the months of April through September. He further admitted that he had failed to make his court-ordered child support and alimony payments for the months of August and September. According to the record, at least until July 13, 1986, the appellant was drawing a salary in excess of $5000.00 per month. It is obvious that during that period of time he had the ability to make the payments as ordered by the court but refused to do so. The court could, and did, find that failure to be willful. Appellant further argues that his employment with the care center ceased on July 15, after which he had entered private practice. He offered evidence that his net income for the months of July and August was approximately $150.00 per month. Although we are unable to understand much of the testimony given by appellant’s accountant as to what he earned and when he earned it, he did state that appellant paid in excess of $2000.00 in overhead and expenses for the two-month period of July and August. The chancellor was not required to believe appellant’s testimony as to his indigency but, in any event, could have determined that his preference of all other creditors over his court-ordered ones constituted willful acts of disobedience of the court order. In view of the order the court entered, it is obvious to us that the chancellor did not believe appellant’s testimony of his dire financial circumstances and did believe that he had the present ability to bring himself into compliance. We find no grounds for reversal of the court’s order, but we are confident that due to the period of time which has now elapsed between the date that order was entered and the termination of this appeal the trial court will, before ordering further confinement, afford the appellant an opportunity to disclose his present financial abilities to pay the arrearages in one lump sum, and thus to bring himself into compliance with the court’s order, and, if he does not have that ability, an opportunity to present alternative methods of purge with which he might be able to comply. Affirmed. Coulson and Jennings, JJ., agree.