dissenting. I disagree with the majority opinion because I believe the last paragraph of the contested instruction was in error. That portion of the instruction stated:
Therefore, if you find that Doris Dawson concealed unpurchased goods or merchandise upon her person, then the defendant’s employee and the police were entitled to detain her in a reasonable manner for a reasonable length of time, and your verdict should be for the defendant.
I cannot distinguish this instruction from the one given in Thiel v. Dove, 229 Ark. 601, 317 S.W. 2d 121 (1958). In Thiel the erroneous instruction stated:
You are instructed that malice may be inferred from the falsity and absence of probable case or other relevant circumstances, or it may be deduced from the libel or slander itself of which it forms a part.
In Thiel, the Court upheld the argument that the instruction constituted a comment upon the weight of the evidence, and I think the same argument can be applied to the instruction in the present case. The instruction should have included a statement that these findings should be considered along with all other evidence in the case and that such findings standing' alone did not impose a duty upon the jury to find for the defendant.
In effect, the instruction given in the present case told the jury that the defendant’s employee and the police were entitled to detain the appellant for whatever length of time she was detained. It is true the record does not give us the information needed to completely understand all of the facts and whether or not the appellant was detained under circumstances allowed by the shoplifting statute. However, the instruction should have included a statement that this evidence was to be considered along with all the other evidence presented to the jury.
We have held that it was clearly improper for the court to tell the jury that a specific fact in evidence is sufficient to support an inference of guilt, negligence, or the like. Blankenship v. State, 55 Ark. 244, 18 S.W. 54 (1891); Reno & Stark v. State, 241 Ark. 127, 406 S.W. 2d 372 (1966); and Thiel, supra.
In Thiel, supra, we stated the jury determines whether the particular inference should be drawn from all the proof in the case; and, consequently, the court comments on the weight of the evidence when it declares that a certain inference may be drawn from a specific fact. This is exactly the situation we have in the instruction complained of in this case.
The statute from which this action arose was a criminal statute. The instruction recommended in AMCI 2203-PR is as follows:
Evidence that _knowingly concealed on her person unpurchased merchandise offered for sale by _may be considered by you in determining whether she took the merchandise with the purpose of depriving the owner thereof. However, this evidence must be considered along with all the other evidence in the case and does not impose any duty upon you to find that the defendant took the merchandise with the purpose of depriving the owner thereof.
If the criminal statute is to be relied upon in a civil case, certainly the criminal instruction should also be considered. I think it entirely proper, and necessary, that the portion of AMCI 2203-PR stating this evidence should be considered along with all other evidence in the case should have been included in the instruction in this case.
Therefore, I feel the instruction amounted to a comment on the evidence and prevented the jury from considering any other evidence which may have been presented to them.