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Ernie E. Wright, Chief Judge.
The appellant brings this appeal from a decision of the Workers’ Compensation Commission denying her claim for medical and disability benefits on the finding she failed to establish by a preponderance of the evidence that her physical impairment arose out of and in the course of her employment.
For reversal appellant contends the Commission failed to give appellant the benefit of reasonable doubt in weighing the evidence. We treat the point as raising the issue that the finding of the Commission is not supported by substantial evidence and appellee argues this issue in its brief.
Appellant was injured in the right groin on November 29, 1978, when a jammed door to a lint cotton baler was pried open and the door handle struck her. Promptly after the accident her supervisor referred her to Dr. George Mallory, the company doctor, who examined the injury and found tenderness in the right groin. He performed no special tests, and released appellant for light work for a few days and prescribed pain medication. Dr. Mallory did not thereafter see or treat the claimant. On December 1, 1978, claimant was sent to the emergency room of Memorial Hospital in North Little Rock for further examination and her lower right side was found to be swollen. She worked until December 27, 1978, two days before she was to be laid off under a work reduction program. When she left work on December 27, she was having problems with hemorrhoids and her right leg was swelling.
Claimant continued to experience pain in the area of the injury and on January 25, 1978, she consulted Dr. Gilbert C. Evans. Upon examination, including x-rays and other tests, he found tenderness in claimant’s right groin area and the existence of a hernia or a mass in that area. He referred her to Dr. John E. Allen, a cardiovascular specialist and surgeon. Dr. Allen’s first impression was that the mass in appellant’s groin was an incarcerated hernia. He performed surgery and found no hernia but found multifocal fibrosis and lymphadenitis in enlarged nodes. Based upon the claimant’s history of injury at work and what he found upon surgery Dr. Allen stated the claimant’s “*** problems were secondary to her employment and arose out of traumatic dermatopathic lymphadenitis. This was confirmed by the final path report of which I am enclosing a copy.” Appellant was returned to the care of Dr. Evans and with the additional information supplied by the surgery performed by Dr. Allen, Dr. Evans’ objective findings were, “Traumatic lumphgenitis — Hunter’s Rt.” His report reflected the claimant’s history as having been struck in the abdomen by a baler door in late November, 1978.
Neither Dr. Allen nor Dr. Evans were present to give detailed testimony at the hearing on .the claim, however, the report of each reflected claimant’s condition resulted from the traumatic injury she sustained at work. We believe it to be a matter of common knowledge of which the Commission can take notice that it is extremely difficult, if not almost impossible, for claimants to secure the presence of a physician at hearings on workers’ compensation claims.
The employer’s physician, Dr. Mallory, a general practitioner, was present and testified on behalf of appellee. He had not diagnosed appellant’s dermatophyic lumphadenitis nor treated her for such condition. His diagnosis the only time he saw claimant was, “injury of right groin.” He saw her only the one time and prescribed some pain pills. He performed no special tests nor were any performed under his supervision. In response to leading questions from the appellee’s counsel he testified that vaginal infections could cause lymphadenitis, that the claimant could have incurred some infection after leaving her employment which had cleared up and left her condition, and that lymphadenitis is basically infectious in nature. He also testified infectious mononucleosis could cause lymphadenitis. At one point in response to a leading question as to whether hemorrhoids could produce lymphadenitis, he answered, “probably.” Later in his testimony however he stated, “I don’t think hemorrhoids would have anything to do with it.” There is no evidence that appellant suffered from any of the infections that Dr. Mallory stated could cause lymphadenitis. The evidence was her health was good prior to the injury and she was doing heavy labor work. She did have hemorrhoids, but Dr. Mallory’s final testimony as to whether that condition could account for lymphadenitis made it clear he did not think so. He stated he had never seen a case or read of a case of lymphadenitis resulting from a blow, and that he did not believe the condition Dr. Allen found came from the accident.
As the Commission’s opinion does not detail specific findings of fact on some crucial points, we are unable to tell whether the Commission resolved the claim upon the medical theory advanced by Dr. Mallory which in effect was that there is no validity to the opinions of Dr. Evans and Dr. Allen that the lymphadenitis was traumatic in origin and consistent with the history of the injury. The majority opinion of the Commission discusses at some length the testimony of the company doctor, but fails to mention the parts of the reports of Dr. Evans and Dr. Allen, a specialist, linking appellant’s condition to the injury. Dr. Evans and Dr. Allen performed extensive tests, Dr. Allen performed surgery, and they diagnosed her condition. Dr. Mallory had no opportunity to examine the mass that developed in appellant’s right groin. The opinion simply disposed of the crucial issue with the finding:
Claimant failed to prove by a preponderance of the evidence that a condition known as “dermatopathic lymphadenitis” was caused by a condition arising out of and in the course of her employment.
The above “finding” is a conclusion rather than a finding of fact, and we conclude that this case must be reversed and remanded to the Commission for further consideration. It appears the Commission does not have sufficient information before it to make a definitive determination as to whether dermatopathic lymphadenitis' can be produced by traumatic compression or rupture of lumph nodes or channels. Also, it is clear the Commission made no determination as to whether the multifocal fibrosis found in the groin by the pathologist was injury related.
The case will be reopened to receive further evidence on-these crucial questions, and if necessary the Commission should employ a qualified medical examiner in the field in question for the purpose of securing additional medical testimony relative to the issue of whether the condition from which claimant suffered arose out of the injury. This course of action is authorized by Ark. Stat. Ann. § 81-1319 (i), § 81-1323 (b) and Ward Furniture Mfg. Co. v. Heather, 234 Ark. 151, 350 S.W. 2d 691 (1961).
It is clear the Commission has failed to adequately detail findings of fact to enable this reviewing court to properly review the record. The Commission has the right to find the facts, but that right carries with it the duty to make and set out the crucial findings of fact and the supporting evidence. This rule is set out in Larson’s Workmen’s Compensation Law § 80.13 which cites numerous cases including Ward Mfg. Co. v. Reather, supra.
This case is reversed and remanded with directions to the Commission to take such further evidence as may be necessary, make definitive findings of fact on the crucial issues and render such award as is indicated by the findings.
In its final review of the evidence the Commission must keep in mind the established rule reiterated in Wilson Lbr. Co. v. Hughes, 245 Ark. 168, 431 S.W. 2d 487 (1968), that it is the duty of the Commission to draw every legitimate inference possible in favor of the claimant and to give him the benefit of the doubt in factual determinations.
Reversed and remanded.
Penix, J., dissents. | [
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John F. Stroud, Justice.
This is an appeal from a conviction in the Circuit Court of Clark County for possession of a controlled substance (marijuana) with intent to deliver. We agree with appellant that the warrantless search of the trunk of his vehicle was illegal and the marijuana seiz:ed there should have been suppressed from evidence.
Appellant was stopped on April 26, 1979, about 10:00 p.m. on Interstate 30 near Arkadelphia by two troopers of the Arkansas State Police for a defective taillight. While Trooper Jim Jenkins was issuing a compliance summons to appellant, Trooper Glen Owens proceeded to investigate the vehicle, shining his flashlight into it, examining the inspection sticker, and, finally, entering the vehicle on the driver’s side. Trooper Owens emerged from the vehicle with part of a marijuana cigarette and a green-handled “roach holder” which he later testified were lying in plain view in the console ashtray. At that point appellant and his passenger were arrested and taken into custody for possession of marijuana. The troopers then proceeded to conduct a warrantless and non-consensual search of the entire vehicle, including the locked trunk. After searching several suitcases in the trunk and finding a burglap bag containing five bricks of marijuana, appellant was charged with possession of a controlled substance (marijuana) with intent to deliver. The troopers then transported appellant and his passenger to the Clark County Jail and had appellant’s vehicle towed to a local service station.
Appellant filed a motion to suppress the marijuana from evidence, alleging that it was the product of an illegal search and seizure, but the trial court denied the motion. Appellant was convicted by a jury on January 30, 1980, and sentenced to imprisonment for five years and fined in the amount of $10,000. Alleging that the trial court erred in denying his motion to suppress, appellant brings this appeal.
The sole issue on appeal is whether the warrantless and non-consensual search of appellant’s vehicle was violative of the Fourth Amendment’s prohibition against unreasonable searches and seizures. The facts in this case are disturbingly similar to those recently decided by this court in Scisney v. State, 270 Ark. 610, 605 S.W. 2d 451 (1980). The arrests in both cases were made at night by the same officers at the same mile marker on 1-30; both vehicles had a defective rear light; marijuana was found in the ashtray of both vehicles; a warrantless and non-consensual search was made of the locked trunk of both vehicles; and both appellants received identical sentences. We feel our reasoning in Scisney controls the disposition of this appeal. Although Scisney involved the search of luggage contained in the trunk of the defendant’s automobile, the initial intrusion into the trunk compartment was wrongful in that case and it was wrongful here as well.
Contrary to appellant’s argument, this case does not fall under the “suitcase doctrine” as enunciated in United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977), and Arkansas v. Sanders, 442 U.S. 753, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979). The burlap bag which contained the marijuana seized from the trunk of appellant’s vehicle was invested with the expectation of privacy that the above cases extended to typical repositories of personal effects. Nor does this case fall within the purview of the “automobile exception” established in Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925), for at the time of the search any exigency of mobility of the vehicle had been removed by the arrest of appellant and his passenger and the' call for the tow truck.
This was, as in Scisney, simply an instance in which law enforcement officers ignored the United States Constitution’s prohibition against unreasonable searches and seizures. Absent a warrant, consent or any underlying probable cause, they proceeded to search the entirety of appellant’s vehicle and, ultimately, seized contraband found therein. A “roach clip” and part of a marijuana cigarette found in the console ashtray of the vehicle did not supply the probable cause required for a warrantless search of the contents of the locked trunk of the car, nor did they provide the reasonable belief required for a warrantless search pursuant to Rule 12.4 of the Arkansas Rules of Criminal Procedure. Accordingly, as we find that appellant’s motion to suppress should have been granted, we reverse the judgment of the trial court.
Reversed and remanded. | [
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John A. Fogleman, Chief Justice.
Appellant David J. Burt was charged with five counts of theft by deception [Ark. Stat. Ann. § 41-2203 (Supp. 1979)]. On September 6, 1979, he entered a negotiated plea of guilty and was placed on probation for ten years. One of the conditions of his probation was that he make full restitution of $16,200 to Don Moak, the victim of the offenses with which he was charged. On January 7, 1980, the state filed a petition for revocation of the probation on the ground that appellant had failed to make full restitution by failure to pay $4,000, with interest at ten percent to Moak, on January 1, 1980, the date this final installment became due. On February 1, 1980, after a hearing, the probation was revoked and the sentence, after modification to imprisonment for five years, with three of them suspended upon condition of payment of the balance required for full restitution to Moak, was pronounced.
Appellant asserts that the trial court erred in revoking the probation because the court failed to follow statutory requirements in the initial sentencing procedures. We agree and reverse the judgment.
At the time of the sentencing, Burt, addressing the trial judge, stated that he did not know anything about the courts, that the payment of restitution depended upon his ability to continue the business he was in, but that, due to his inability to be “bonded,” he was compelled to give up his business and line of work and was unable to obtain a job, because he was 100 percent disabled. The trial judge simply informed Burt that there would be no difference for ten years, because appellant stood convicted of the crime anyway, but at the end of ten years, his record might be cleansed, “so to speak.”
Burt testified that, after he left the court, the probation officer advised him that he would be unable to leave the state without contacting the probation officer and that he would not be permitted to carry a gun or to frequent places that dispensed alcohol. Burt said that these conditions caused the bonding company, by whom he had been employed, to decide that he was of no further use to them because a “bond-jumper” could be in another state by the time Burt could get ahold of his probation officer. Burt testified, without any contradiction, that he never received any written statement of the conditions of his probation. On cross-examination, Burt said that he understood all of the conditions except one, i.e., that the last payment was due on January 1, 1980, rather than January 1, 1981. The record does not disclose that the trial judge ever stated the schedule for restitution to appellant at the time the order of probation was pronounced. The plea questionnaire executed by appellant prior to the entry of his plea states no time within which restitution was to be made. At the time appellant entered his plea he said that he understood that he was to “pay the gentleman his money back.” The prosecuting attorney, in making his recommendation, did state that the final payment was to be made on January 1, 1980.
Ark. Stat. Ann. § 41-1203 (4) (Repl. 1977) provides that when a trial court suspends the imposition of sentence on a defendant or places him on probation, “the defendant shall be given a written statement explicitly setting forth the conditions under which he is being released.” The state concedes that appellant received no such written statement. In Ross v. State, 268 Ark. 189, 594 S.W. 2d 852, we held that a circuit court has no power to revoke probation of a defendant when a written statement explicitly setting forth the conditions of the probation has not been given to the defendant as required by Ark. Stat. Ann. § 41-1203.
The state recognizes the holding in Ross, on March 3, 1980, but argues that it should not be retroactive, without explaining why. We simply applied the clear language of the statute. As early as 1963, we pointed out the lack of a statutory requirement that the conditions of a probation or suspension be in writing and the desirability of a trial court’s enumeration of conditions. See Gerard v. State, 235 Ark. 1015, 363 S.W. 2d 916. The case before us is certainly illustrative of the reason for the mandatory language of the statute which became effective 13 years after Gerard was decided. One could hardly be heard to say that he misunderstood the conditions of his probation if the statute is followed.
The drafters stated that the statute insured that a defendant be aware of the conditions to which he must conform his future conduct and took our decision in Gerard as an endorsement of the procedural requirement that a defendant be furnished with a written list of conditions. See Commentary, § 41-1203. The mandatory nature of the requirement is stated in the statute and not established by Ross, so the question of retroactivity simply does not exist.
The judgment is reversed. | [
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Robert H. Dudley, Justice.
The issue in this case is whether the buyers of a business purchased the trade name and are entitled to protect that trade name. The issue is primarily a factual one, and we affirm since the chancellor’s findings of fact are not clearly erroneous.
In 1932, Mr. Vowels started a business in Jonesboro named “Vowels Printing.” The printing business was apparently successful, and about twenty years later Mr. Vowels expanded the business to include the sale of office supplies. At that time, in the early 1950’s, the name of the business was changed to “Vowels Printing and Office Supply.” In 1984, the name was changed to “Vowels Printing and Supply.” Preston Williams, whose wife Gayle is the daughter of Mr. Vowels, became involved in the business in 1984. In 1987, the Williamses began to physically separate the office supply section of the business from the printing section, and, by May, 1988, they had moved the printing part of the business across the street from the office supply business. The two sections of the business were operated as one proprietorship. They both had the same tax identification number, and if either or both sections did work for a customer, the account receivable was payable to the one business, Vowels Printing and Supply.
A real estate broker contacted the buyers, Richard and Barbara Spelic, and asked if they would be interested in buying “Vowels.” The husband, buyer Richard Spelic, knew “Vowels had an excellent reputation in town, and I thought buying Vowels would be a good opportunity for us to continue in the community and keep the Vowels’ name to go on.” The husband had been inside the business twice and the wife only once, when, on May 13, 1988, they signed an agreement to purchase “Vowels Office Supply.” They testified that they were told that the Williamses would retain the printing business across the street, but, they were not told that the sellers would try to retain the name “Vowels.” At the time of the sale, the sign on the front of the building housing the printing business across the street did not contain the name “Vowels;” it reflected only “The Printing Factory.”
The sales agreement, a form with blank lines that were filled in by the real estate agent, provided a sales price of $80,000.00 with $3,000 being allocated to a covenant not to compete. Under this covenant, the sellers, the Williamses, were not to engage in the sale of office supplies for seven years, and the buyers, the Spelics, were not to engage in printing for seven years. More important, the agreement provided that the buyers paid $1,500 for goodwill and $1,500 for the business trade name. The Bill of Sale provides that the buyers purchased the “business trade name, goodwill and any and all other assets, tangible or intangible, belonging or used in connection with or otherwise pertaining to the operation of Vowels Office Supply. . . .”
At the time of the sale, the sellers had listed the office supply business in the telephone directories as “Vowels Office Supply” and had separately listed the printing business as “Vowels Printing Factory.” The sellers, in contradiction of the testimony of the buyers, testified that they told the buyers of the telephone book listings.
The office supply building was being remodeled at the time of the sale, and soon after the sale was completed, a dispute arose over the cost of some of the remodeling. The buyers testified that at that time, the sellers placed a large sign on the front of their printing business that read “Vowels Print Supply” and began answering their phone by saying “Vowels.” The buyers were also answering their phone by saying “Vowels.” Customers, suppliers, and creditors were confused, and the sellers’ mail was sometimes delivered to the buyers and vice versa. The buyers later violated the covenant not to compete by taking a printing order for a local bank. A complaint and counterclaim was eventually filed. Ultimately, the chancellor enjoined the buyers from violating the covenant not to compete and enjoined the sellers from using the name “Vowels” in their printing business.
The chancellor’s findings of fact included the following:
[T]he name “Vowels” has . . . been an accepted and acknowledged local synonym for office supplies and/or printing. As such, “Vowels” has a special significance and meaning and to permit the continued use of the name “Vowels” in . . . [sellers’] business can only result in hopeless confusion for the general public.
The chancellor then applied Ark. Code Ann. § 4-71-113 (Repl. 1991), which provides:
Likelihood of injury to . . .a trade name valid at common law, shall be grounds for injunctive relief notwithstanding the absence of competition between the parties or the absence of confusion as to the source of goods or services.
The sellers make four assignments of error, the first of which is that the trial court erred because the parties were not in competition with each other. The argument overlooks the plain language of the statute. The statute recognizes the value of a trade name in its own right and affords protection to the owner against its unauthorized use. Neither competition nor confusion on the part of customers is required. The issue is not one of competition, but of the likelihood of dilution of the value of the trade name as an asset by its use by someone other than the owner.
The sellers’ second assignment is that under the case of Howe Scale Co. v. Wyckoff, 198 U.S. 118 (1905), a family name may be used in the absence of fraud or deceit unless the exclusive right to the family name is contracted away. Again, the argument overlooks the statute. The chancellor impliedly found that the sellers sold the trade name “Vowels,” that there is a likelihood of injury to it, and that proof was sufficient for the issuance of an injunction under the statute.
A part of the argument on this point is that the sellers did not convey the trade name “Vowels” used in the printing business. The proof shows the buyers paid $ 1,500 to the sellers for the business trade name. The proof showed that the name “Vowels” had been used in Jonesboro for over fifty years, first in 1932 as “Vowels Printing,” then, in the early 1950’s as “Vowels Printing and Office Supply,” and then, in 1984 as “Vowels Printing and Supply.” There was substantial testimony, essentially undisputed testimony, from which the chancellor could find that the name “Vowels” carried a good reputation in the community in both office supplies and printing and that the name had acquired a secondary meaning to the purchasing public of quality in both office supplies and printing. The predominant word in the Vowels’ trade name used for over fifty years is “Vowels.” The buyers testified they were asked by the real estate agent if they wanted to buy “Vowels,” that they thought they were buying “Vowels,” and that the sellers never disclosed they had any intention of retaining any part of the “Vowels” trade name.
To the contrary, the sellers testified that they told the buyers they were going to use the name “Vowels Printing Factory,” and, in addition, the contract provides that the buyers purchased only the name “Vowels Office Supply.” The chancellor heard and observed the witnesses and found in favor of the buyers. We cannot say the finding of fact was clearly erroneous.
In his letter opinion, the chancellor wrote, “[T]he existing confusion will ultimately detract from the otherwise separate businesses of the parties, to the detriment of each,” and when one considers that three years from now, or seven years from the date of the contract, both parties can compete in both of the businesses, no other conclusion could reasonably have been reached.
The sellers’ next assignment of error is based on the law of unfair competition, and, again, the argument overlooks the statute. Contained in this assignment is a sub-argument that the chancellor erred in ruling that “the name, ‘Vowels’ has for many years to my personal knowledge been an accepted and acknowledged local synonym for office supplies and printing.” They contend that the chancellor should not have taken judicial notice of the secondary meaning. See A.R.E. Rule 201. The sellers are correct. The chancellor should not have taken judicial notice of the secondary meaning, but it is immaterial in this case because there was sufficient independent proof of the matter. Thus, the error was harmless. See Arkansas Sav. & Loan Ass’n v. Mack Trucks of Ark., Inc., 263 Ark. 264, 566 S.W.2d 128 (1978).
The sellers’ final argument of error is that the trial court erred in granting the injunction because Vowels is the maiden name of Gayle Vowels Williams. The general rule is that prohibiting an individual from using his or her true surname is to take away his identity, and courts will avoid doing that, if possible. Societe Vinicole de Champagne v. Mumm, 143 F.2d 240 (2d Cir. 1944). Here, the general rule has no application at all to seller Preston Williams, and seller Gayle Williams did not lose either her surname or her individual identity by the court’s ruling. Even if she lost some part of her business name identity, we would not reverse. When a surname is used as a trade name, it risks becoming a symbol of the business and losing its individual identity. Levitt Corp. v. Levitt, 593 F.2d 463, 468 (2d Cir. 1979) (citing R. Callman, Unfair Competition, Trademarks and Monopolies, § 85.2 (d)(1) (3d ed. 1969)). This is especially true when the name is conveyed as goodwill, and, if confusion is likely, there must be some limitation on a seller’s unrestricted use of his or her name. Taylor Wine Co. v. Bully Hill Vineyards, Inc., 569 F.2d 731, 734 (2d Cir. 1978). In a situation in which an infringer has previously sold his business name with its goodwill, a sweeping injunction is more likely to be an appropriate remedy. Id. at 735. When a business purchases goodwill and a trade name, it acquires a valuable property right, and that is the right to inform the public that it possesses the experience and skill symbolized by the original concern. Levitt Corp. v. Levitt, 593 F.2d 463, 468 (2d Cir. 1979). If the public is confused, the value of the goodwill is diluted. Courts will be especially alert to foreclose attempts by a seller to “keep for himself the essential thing he sold, and also keep the price he got for it.” Guth v. Guth Chocolate Co., 224 F. 932, 934 (4th Cir. 1915), cert. denied, 239 U.S. 640 (1915). Thus, the chancellor could validly issue the sweeping injunction against the use of the maiden name of the sellers.
Affirmed.
Holt, C.J., Glaze, and Brown, JJ., dissent. | [
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Donald L. Corbin, Justice.
On December 31, 1991, appellant, Bryan Campbell, was involuntarily admitted to the Arkansas State Hospital. On January 8, 1992, a petition to involuntarily commit appellant was filed. A hearing was held on January 10, 1992, at which the court held appellant should be committed to the Arkansas State Hospital or Western Arkansas Counseling and Guidance Center for a period not to exceed forty-five (45) days. An order setting forth the court’s holding was filed on January 10, 1992. The court order expired on February 23, 1992. On appeal, appellant argues the court committed error by not dismissing the commitment proceedings against him pursuant to Ark. Code Ann. § 20-47-210 (Repl. 1991) and the court violated his constitutionally vested liberty interest by not dismissing the proceedings against him. We do not address appellant’s second argument as appellant failed to raise this issue below. We do not consider even constitutional issues that are raised for the first time on appeal. Ussery v. State, 308 Ark. 67, 822 S.W.2d 848 (1922). Since this case involves the interpretation of an act of the General Assembly, our jurisdiction is proper pursuant to Ark. Sup. Ct. R. 29(l)(c).
Normally, this case would not be subject to review because it is moot, but appellant asks us to decide the case anyway claiming it “presents a question that is capable of repetition, yet evading review”, DeFunis v. Odegaard, 416 U.S. 312, 318-19 (1974) (quoting Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 515 (1911)), and cases of this type “tendQ to become moot before litigation can run its course”, Campbell v. State, 300 Ark. 570, 572, 781 S.W.2d 14, 15 (1989), since the commitment periods contained in the applicable statutes are seven (7), forty-five (45), and one hundred eighty (180) days.
We do not ordinarily decide issues which are moot, but “when a case involves the public interest, or tends to become moot before litigation can run its course, or a decision might avert future litigation, we have, with some regularity, refused to permit mootness to become the determinant.” Campbell, 300 Ark. at 572, 781 S.W.2d at 15 (citations omitted). This case “is moot in the sense that we cannot now afford appellant any relief, but it is not moot in the sense that it is important to decide a practical question of great public interest.” Id. As appellant points out, the involuntary commitment statutes provide for only short term involuntary commitment such that most persons committed under these statutes will have been released before their appeals can be decided. Whether a person can be held involuntarily when the petition for involuntary commitment is not filed within the time provided in the statute is a practical question of great public interest. For that reason, we address appellant’s substantive argument.
The following constitutes the chronological development of appellant’s confinement and the court action leading to this appeal.
Tuesday, December 31, 1991 Appellant’s initial confinement 6 p.m.
Wednesday, January 1, 1992 Holiday, excluded by statute
Thursday, January 2, 1992 24 hours/1 day
Friday, January 3, 1992 48 hours/2 days
Saturday, January 4, 1992 excluded by statute
Sunday, January 5, 1992 excluded by statute
Monday, January 6, 1992 72 hours/3 days
Tuesday, January 7, 1992 96 hours/4 days
Wednesday, January 8, 1992 117 3/4 hours/5 days 3:45 p.m. petition filed
Thursday, January 9, 1992 6 days
Friday, January 10, 1992 7 days/45 day commitment order
Appellant argues that section 20-47-210(a)(l) requires that a petition be filed in the probate court of the county in which the person resides or is detained within seventy-two (72) hours of his detention, excluding weekends and holidays, and since the petition was not filed within seventy-two (72) hours, the petition should have been dismissed. We agree.
Section 20-47-210(a)(l) provides in pertinent part:
A petition, as provided in § 20-47-207, shall be filed in the probate court of the county in which the person resides or is detained within seventy-two (72) hours, excluding weekends and holidays, and a hearing, as provided in § 20-47-209(a)(1) shall be held[.] [Emphasis added.]
“[W]e have held that the word ‘shall,’ when used in a statute, means the legislature intended mandatory compliance unless such an interpretation would lead to absurdity.” Baumer v. State, 300 Ark. 160, 163, 777 S.W.2d 847, 849 (1989). The petition should have been filed within seventy-two (72) hours and since the legislature intended mandatory compliance, we find failure to file the petition within seventy-two (72) hours, excluding weekends and holidays, requires dismissal of the petition. Garrett v. Andrews, 294 Ark. 160, 741 S.W.2d 257 (1987), cert. denied sub nom. Andrews v. Adams, 487 U.S. 1219 (1988) (ten day filing limit in election contest jurisdictional, failure to comply requires dismissal). The court lacked jurisdiction to decide the petition, which was filed outside the statutory time limit, and thus erred by committing appellant for a period not to exceed forty-five (45) days. Since the forty-five (45) day period has already run, we cannot remedy this error by ordering appellant to be released, but we do order that the decision of the trial court be reversed and dismissed and record of appellant’s involuntary commitment pursuant to the court’s order be removed from his record at the Arkansas State Hospital.
Reversed and dismissed. | [
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David Newbern, Judge.
The sole point submitted by the appellant for reversal is that the commission erred in determining that medical benefits owed to the appellant were not controverted by the appellees. In effect, the appellant asks us to say that, based upon the facts found by the commission, the medical payments were controverted as a matter of law.
The appellant received an unquestionably compensable injury while employed by K. C. Penney May 8, 1979, The evidence presented by the appellees tended to show they had difficulty ascertaining the appellant’s rate of pay. Conferences were held between the adjuster for the insurance company and the appellant and his attorney to make that determination.
The appellant filed a claim with the commission which held he was entitled to an award of temporary disability benefits and medical payments. It was held the award was controverted to the extent of “all temporary disability benefits.” It was therefore held the appellant’s attorney was entitled to the maximum statutory fee on the controverted part of the award. Ark. Stat. Ann. § 81-1332 (Supp. 1979).
The appellant contends here that the medical payments part of the award was also controverted. Although not stated by the appellant, the purpose of the appeal must be to obtain an addition to the statutory attorney fee based on a percentage of the medical payments awarded.
The commission determined specifically that the medical payments had not been controverted. The record reveals it is undisputed that the only medical bill received by the insurer before the hearing in this case was received by it on August 8, 1979- it was approved for payment by the insurer’s claims manager on August 10, 1979, and “put in for payment,” but the witness appearing for the insurer could not say definitely the bill had been paid at the time of the hearing.
The only authority cited by the appellant is Aluminum Co. of America v. Henning, 260 Ark. 699, 543 S.W. 2d 480 (1976), where our supreme court refused to say a finding of controversion could be avoided by an employer or insurer by simply advising the commission it would not controvert the claim. The case.treated the question of controversion as one of fact. We will uphold the commission’s factual determinations if we find substantial evidence supporting them in the record. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W. 2d 360 (1979);O.K. Processing, Inc. v. Servold, 265 Ark. 352, 578 S.W. 2d 224 (1979).
In Turner v. Trade Winds Inn, 267 Ark. 219, 592 S.W. 2d 454 (Ark. App. 1980) this court sustained the commission’s finding of no controversion where there had been delay in paying hospital bills. There we held there was substantial evidence that the delay in payment was justified. Here we cannot even say there has been a delay in payment, as no medical bills were even submitted to the appellees for payment until 19 days before the hearing. No evidence showed the appellees declined to pay or delayed payment. There is substantial evidence to support the commission’s finding the medical bill was not controverted.
Affirmed. | [
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John I. Purtle, Justice.
The Arkansas State Hospital filed claim against Cleburne County for collection of three accounts totaling $1800. The debts were incurred because three prisoners were sent to the state hospital, from Cleburne County, pursuant to Ark. Star. Ann. § 43-1301 (Repl. 1977). The Cleburne County Quorum Court denied the claim, and the hospital appealed to the circuit court which allowed one of the claims in the amount of $600 but denied the other two because the three year statute of limitations had run.
On appeal the hospital claims the statute of limitations does not run against the state. We agree.
These claims were not filed until 1980 although they were incurred in 1975, 1976 and 1977. The first two were incurred more than three years prior to the filing of the claim. The trial court applied the three year statute of limitations which did not bar one claim but did bar the other two.
Appellant correctly cites several cases which hold that the statute of limitations does not run against the state. Alcorn v. Arkansas State Hospital, 236 Ark. 665, 367 S.W. 2d 737 (1963); and Jensen v. Fordyce Bath House, 209 Ark. 478, 190 S.W. 2d 977 (1945). Our cases have held that the sovereignty of the state prevents the statute of limitations from barring its claims. It has been held many times that a county may invoke the statute of limitations in claims presented for payment. Boone County v. Skinner-Kennedy Stationery Co., 191 Ark. 329 (1935). In the cases we have reviewed which allow the county to invoke the statute of limitations the claims were not presented by the state. Therefore, it appears that the county may invoke the statute of limitations to all except the state.
It does not appear that the parties asked the court to consider Amendment 10 to the Constitution of Arkansas which states:
* * #
The fiscal affairs of counties, cities and incorporated towns shall be conducted on a sound financial basis, and no county court or levying board or agent of any county shall make or authorize any contract or make any allowance for any purpose whatsoever in excess of the revenue from all sources for the fiscal year in which said contract or allowance is made; nor shall any county judge, county clerk or other county officer, sign or issue any scrip, warrant or make any allowance in excess of the revenue from all sources for the current fiscal year; nor shall any city council, board of aldermen, board of public affairs, or commissioners of any city of the first or second class, or any incorporated town, enter into any contract or make any allowance for any purpose whatsoever or authorize the issuance of any contract or warrants, scrip, or other evidences of indebtedness in excess of the revenue for such city or town for the current fiscal year; nor shall any mayor, city clerk or recorder, or any other officer or officers, however designated, of any city of the first or second class or incorporated town sign or issue any scrip, warrant or other certificate of indebtedness in excess of the revenue from all sources for the current fiscal year.
* # #
The trial court was in error in holding the statute of limitations applied to the claims of the Arkansas State Hospital. The procedure for collection of the claims is a matter which is not before us at this time.
Reversed and remanded.
Hickman, J., concurs in the result. | [
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Darrell Hickman.
William N. Evans, Jr., was convicted of rape and incest in the Cleburne County Circuit Court.
On appeal, his counsel raises only one issue which is that the Supreme Court should order a new trial because defendant was insane at the time of the trial. It is contended that this information was unavailable at trial.
The record is void regarding the issue. It contains no reference to the evidence or any request for post judgment relief on the issue. The appellant’s counsel attempts to present the question by a brief to this court. He refers to a letter from a psychiatrist who found, after the trial, that Evans was insane. The letter is not in the record. There is no motion for a new trial.
Apparently an attempt was made to supplement the record but it was denied without prejudice to appellant’s proceeding under Rules of Crim. Proc., Rule 37. Unless evidence is presented to a trial court and is properly in the record we cannot review it. This court does not review any evidence that is not in the record. Weston v. State, 265 Ark. 58, 576 S.W. 2d 705 (1979); Bridger v. State, 264 Ark. 789, 575 S.W. 2d 154 (1979). The judgment must be affirmed.
Affirmed. | [
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Robert H. Dudley, Justice.
On November 6,1990, Governor Bill Clinton was re-elected to the Office of Governor, and Jim Guy Tucker was elected to the Office of Lieutenant Governor. Both were elected and commissioned to four-year terms of office that commenced on January 15, 1991. On November 3, 1992, a little over twenty-one months later, Governor Clinton was elected to the Office of President of the United States of America. It is anticipated that Governor Clinton will resign from the Office of Governor before January 20, 1993, which is the day the oath of the Office of President of the United States will be administered. The result will be that a vacancy will exist in the Office of Governor, and more than twelve months will remain on the four-year term to which Governor Clinton was elected.
This suit for a declaratory judgment was filed requesting an interpretation of the various provisions of the Constitution of Arkansas regarding succession to the Office of Governor when the Governor resigns with more than twelve months remaining in the term of office. The trial court entered a judgment declaring that upon the resignation of Governor Clinton, the powers and duties of the Office of Governor, but not the office itself, will devolve upon the Lieutenant Governor for the remainder of the four-year term. The trial court also ruled that a special election to fill the office is not required and that the Lieutenant Governor is not authorized to appoint a successor to the Office of Governor. Attorney General Winston Bryant appeals from the judgment, and Lieutenant Governor Jim Guy Tucker cross-appeals from that part of the judgment declaring that the Office of Governor does not devolve upon the Lieutenant Governor. On direct appeal, we affirm the trial court’s judgment and hold that upon the resignation of a Governor, the powers and duties of the Office of Governor devolve upon the Lieutenant Governor for the remainder of the four-year term, and, on cross-appeal, we reverse and hold that the Office of Governor itself devolves upon the Lieutenant Governor.
I. Procedure
The Declaratory Judgments Act, Ark. Code Ann. §§ 16-111-101 —-16-111-111 (1987), provides that the purpose of the act is “to afford relief from uncertainty . . . with respect to . . . status,” and the act is to be liberally construed to that end. The parties stipulated in the trial court that they anticipate that Governor Clinton will resign from the Office of Governor, and the trial court held that a justiciable controversy exists. We have concluded that we should decide the issue because it is a matter of significant public interest and a matter of constitutional law. See Bennett v. N.A.A.C.P., 236 Ark. 750, 370 S.W.2d 70 (1963).
II. Background
Neither the 1836 Constitution of Arkansas nor the 1861 constitution provided for the office of Lieutenant Governor. Those constitutions placed the President of the Senate next in the line of succession for the Office of Governor, and they required a special election if the remaining term of the Governor exceeded a certain period of time. The 1864 constitution, for the first time, created the office of Lieutenant Governor and provided for a statewide election to the office. Ark. Const, of 1864, art. VI, § 19. The 1868 constitution also provided for a Lieutenant Governor and stated that if the Office of Governor became vacant, the Lieutenant Governor served during the “residue of the term.” It made no provision for a special election to fill the vacancy. Ark. Const, of 1868, art. VI, § 10.
Unfortunately, the present Constitution of Arkansas, adopted in 1874, did not originally provide for the office of Lieutenant Governor. Article 6, sections 12 and 13 of the present constitution, originally placed the President of the Senate, followed by the Speaker of the House, in the line of gubernatorial succession, but article 6, section 14 required a special election to fill a vacancy in the Office of Governor when the office was vacated more than twelve months before the expiration of the Governor’s term. Article 6, section 12 of the present constitution originally provided that in the event of the “death, conviction or impeachment, failure to qualify, resignation, absence from the State or other disability of the Governor,” the powers and duties of the office devolved on the President of the Senate “for the remainder of the term, or until the disability be removed, or a Governor elected and qualified.” When construed with the special election procedure of article 6, section 14, the reason for each of these three limitations on the President of the Senate’s period of service is obvious. Each limitation on service was tied to a different contingency. If the Governor became disabled, the President of the Senate served as Governor until the disability was removed. If the office became vacant through death, impeachment, or resignation of the Governor less than twelve months before the end of the Governor’s term, the President of the Senate served “for the remainder of the term.” If the vacancy in office occurred more than twelve months before the end of the Governor’s term, the President of the Senate served until “a governor [was] elected and qualified” at a special election called in accordance with article 6, section 14.
Only days after his inauguration on January 18, 1907, Governor John Sebastian Little suffered a nervous breakdown. Arkansas History Commission, 1 Annals of Arkansas 1947 239 (Dallas T. Herndon ed., 1947) [hereinafter Annals]. On February 11, 1907, Governor Little wrote Senator John I. Moore, the President of the Senate, and asked him to assume the duties of Governor. Senator Moore served as acting Governor until the adjournment of the General Assembly on May 14, 1907. Id. at 239. He was succeeded as acting Governor by Senator X.O. Pindall, who was elected President of the Senate shortly before its adjournment. Senator Pindall served as chief executive for sixteen months from May 15, 1907, until January 11, 1909, when he was replaced by the newly elected President of the Senate, Jesse M. Martin. Id at 240. Senator Martin was acting Governor for three days until the inauguration of George W. Donaghey, who had been elected Governor at the general election of 1908. Id. at 240. In sum, during the two-year period between January 15, 1907, and January 15, 1909, the affairs of Arkansas were in the hands of no less than six governors: Jeff Davis, John Sebastian Little, John I. Moore, X. O. Pindall, Jesse M. Martin, and George Donaghey. See id. at 233, 239-41.
The first seven months of 1913 were even more trying; they amounted to a gubernatorial succession crisis. The crisis was triggered when Governor Joe T. Robinson resigned from office following his election to the United States Senate. Id. at 247. W. K. Oldham was President of the Senate when Governor Robinson resigned, but because Senator Oldham was prohibited by article 5, section 18 of the constitution from serving past the end of the legislative session, the Senate elected J. M. Futrell as its President prior to adjournment on March 13, 1913. See id. at 251. Oldham argued that pursuant to article 6, section 12, he succeeded to the Office of Governor when Governor Robinson resigned and did not cease to be Governor when a new Senate President was elected. Futrell argued that he became Governor by virtue of his election as President of the Senate two days after Governor Robinson’s resignation. In Futrell v. Oldham, 107 Ark. 386, 155 S.W. 502 (1913), this court ruled in Futrell’s favor, holding that under article 6, section 12, the powers and duties of Governor devolved upon the office of the President of the Senate and not upon the individual occupying that office. In sum, during the first seven months of 1913, state government was headed by five different individuals: George Donaghey, Joe T. Robinson, W. K. Oldham, J. M. Futrell, and George W. Hays. See Annals, supra, at 244, 247, 251. This was labeled our “procession” of governors. Dr. David Y. Thomas, 1 Arkansas and Its People; A History, 1541-1930 282 (1930). The newspapers of the time spoke of the confusion. The Arkansas Democrat of January 31, 1913, contained an article that began, “Political complications in Arkansas are as thick as a London Fog.” The February 8, 1913, Arkansas Democrat carried an article that contains the sentence, “Kill off the antiquated method of filling a gubernatorial vacancy.”
III. Amendment 6
In February 1913, Representative Kidder introduced a House Joint Resolution for a constitutional amendment that would create the office of Lieutenant Governor. In part, it was a replication of the provision in the 1868 constitution. The March 5, 1913, Arkansas Democrat wrote: “There is no sound argument against the office proposed. It fixes the status of the governor’s successor and does away with a special election to fill a vacancy.” On March 6, 1913, Amendment 6 to the 1874 constitution was proposed by the General Assembly. See 1913 Ark. Acts 1527. Amendment 6 was submitted to, and approved by, the voters at the 1914 general election. See Combs v. Gray, 170 Ark. 956, 281 S.W. 918 (1926), for additional history of the adoption.
Amendment 6, section 4 provides: “In the case of the [resignation] of the Governor,. . . the powers and duties of the office, shall devolve upon the Lieutenant Governor for the residue of the term. . . .” In interpreting constitutional amendments, we have said that a court, in order to determine the meaning and the extent of coverage of a constitutional amendment, may look to the history of the times and the condition existing at the time of the adoption of the amendment in order to ascertain the mischief to be remedied and the remedy adopted. Huxtable v. State, 181 Ark. 533, 26 S.W.2d 577 (1930). “Amendments to a constitution are not regarded as if they had been parts of the original instrument but are treated as having a force superior to the original to the extent to which they are in conflict.” Grant v. Hardage, 106 Ark. 506, 509, 153 S.W. 826, 827 (1913). Repeal by implication is accomplished when a constitutional amendment takes up a whole subject anew and covers the entire subject matter of the original constitution. McCraw v. Pate, 254 Ark. 357, 494 S.W.2d 94 (1973); Berry v. Gordon, 237 Ark. 547, 376 S.W.2d 279 (1964); Pulaski County v. Downer, 10 Ark. 588 (1850). Further, a constitutional amendment is to be interpreted and understood in its most natural and obvious meaning. Carter v. Cain, 179 Ark. 79, 14 S.W.2d 250 (1929).
Amendment 6 took up a new subject matter of gubernatorial succession. The citizens wanted to* prevent any more gubernatorial succession crises and sought to change the procedure previously set out in article 6. It is impossible to reconcile the natural and obvious meaning of the language of the amendment, quoted above, with the special election procedure set out originally in article 6, section 14 in the factual situation before us. If the appellant Attorney General’s suggested meaning were adopted, and we construed “residue of the term” to only mean the Lieutenant Governor takes office only until the next special election, the constitutional amendment would, in part, amount to an exercise in futility. For these reasons, we hold that amendment 6, section 4 provides that the Lieutenant Governor serves as Governor for the residue of the term and not merely until a new Governor is elected at a special election.
We do not decide whether the special election process set out in article 6 is still viable if the Lieutenant Governor becomes Governor and then vacates the office. That issue is not before us.
The trial court ruled that the “powers and duties of the Office of Governor, but not the Office of Governor” devolved upon the Lieutenant Governor. The trial court’s ruling was undoubtedly based on our decision in Futrell v. Oldham, 107 Ark. 386, 155 S.W. 502 (1913), and certainly that case contains language stating that, under article 6, the President of the Senate exercised the powers of the Office of Governor, but did not actually become Governor. For several reasons, we think the holding of Futrell should be distinguished when the Governor resigns and his place is taken by the Lieutenant Governor under the provisions of amendment 6.
First, the framers of amendment 6 took verbatim from article 6, section 10 of the 1868 constitution the phrase “the powers and duties of the office shall devolve upon the Lieutenant Governor,” and they did so without having the opportunity to read this court’s opinion in Futrell. The House Joint Resolution proposing amendment 6 was adopted on March 6,1913, eighteen days before this court handed down the decision in Futrell on March 24, 1913.
Second, in deciding Futrell, this court was obviously concerned that the President of the Senate had never been elected by a direct statewide vote — he had been directly elected only by the voters of a local state Senate district. The opinion provides:
The central thought [of article 6, sections 12, 13, and 14] is, that the office of Governor is never to be filled at all except by the direct vote of the people themselves, and provision is made by the Constitution for only a temporary devolution of the duties and emoluments of the office upon some other functionary while a vacancy exists.
107 Ark. at 394, 155 S.W. at 505. Under amendment 6, section 2, the Lieutenant Governor is now elected by a direct statewide vote of the people at the same time and for the same term as the Governor.
An equally important distinguishing factor is that today, under amendment 6, section 2, the Lieutenant Governor is a member of the executive branch of the government, but under article 6, as interpreted in Futrell v. Oldham, the President of the Senate was a member of the legislative branch and remained such while performing the duties of governor only until an election could be called. The opinion provides:
So, if the person discharging for the time being the duties of Governor is still President of the Senate, he cannot be Governor. He may exercise the powers of the latter office — “exercise the office of Governor,” as it is otherwise expressed in another section, but he does not fill the two offices.
107 Ark. at 391, 155 S.W. at 504.
Under amendment 6 we are not faced with the same problem. In fact, allowing the Lieutenant Governor to succeed to the Office of Governor eliminates the separation of powers and the dual office-holding problems. If the Lieutenant Governor were not to assume the Office of Governor, he would act as Governor and still preside over the Senate and have the power to cast votes in the event of tie votes. This mixing of executive and legislative powers is avoided when the Lieutenant Governor assumes the Office of Governor and sheds the duties of Senate President. For these reasons, Futrell v. Oldham is distinguished.
Amendment 6, section 4 provides that if the Office of Governor becomes vacant, “the powers and duties of the office, shall devolve upon the Lieutenant Governor for the residue of the term.” The next section of the amendment, section 5, provides that if the offices of both Governor and Lieutenant Governor become vacant, the President (pro tempore) of the Senate “shall act as Governor until the vacancy [is] filled.” Similarly, the Speaker of the House “shall act as Governor until the vacancy be filled” if the President of the Senate becomes unable to act as Governor. The difference in language suggests that the Lieutenant Governor, unlike the President (pro tempore) of the Senate or the Speaker of the House, does not merely act as Governor when the Governor resigns. Rather, it suggests that he becomes the Governor.
It is also of some persuasion that for nearly three-quarters of a century the executive branch has treated a lieutenant governor as governor when he filled a vacant governor’s office. The first instance occurred in 1926 when Lieutenant Governor Harvey Parnell succeeded Governor John E. Martineau. Historical Report of the Secretary of State-Arkansas 230 (1978). It also occurred when Governor Dale Bumpers resigned from the Office of Governor and Lieutenant Governor Bob Riley was commissioned governor, as well as when Governor David Pryor resigned and Lieutenant Governor Joe Purcell was commissioned as Governor. See Commissions in Secretary of State’s Office. In addition, we are persuaded that the drafters of amendment 6, and the voters who approved it, knew that article 6, section 2 would remain in place. It provides: “The supreme executive power of the State shall be vested in a chief magistrate, who shall be styled ‘the Governor of the State of Arkansas.’ ”
Accordingly, we hold that amendment 6, section 4 provides that upon the resignation of the Governor, the Lieutenant Governor becomes “the Governor of the State of Arkansas.”
One of the parties advanced the argument that amendment 29 of the Constitution of Arkansas requires the Lieutenant Governor to appoint a new governor. We summarily reject the argument and hold that amendment 6 specifically provides for filling a vacancy in the Office of Governor.
Affirmed on direct appeal and reversed on cross-appeal.
Glaze and Corbin, JJ., dissent in part and concur in part. | [
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Darrell Hickman, Justice.
Floyd Washington was charged with the aggravated robbery of the Stinger Sam Auto Parts store in Little Rock. The robbery occurred on June 8, 1979, and Washington was found guilty in a jury trial on April 8, 1980. After the commission of this robbery, Washington committed another robbery for which he was tried and convicted prior to the trial in this case.
On appeal, Washington argues that: (1) The State failed to show on the record that the appellant voluntarily and intelligently waived his right to the full and effective assistance of counsel; and, (2) The trial court erred in admitting, during sentence enhancement proceedings, evidence of a prior conviction which occurred after the commission of the principal offense.
In a separate hearing evidence was presented of two prior felony convictions and Washington was sentenced under the habitual criminal statute. The jury fixed his punishment at life imprisonment and the court directed that the life sentence run consecutively with any sentence the appellant was then serving.
The court finds merit in Washington’s second argument which is that the trial court erred in admitting evidence, for purposes of sentence enhancement, of a prior conviction for a crime which occurred after the commission of the principal offense. The situation is an unusual one and presents this court with an issue that we have not decided before. The following chart will indicate the problem:
Crime Date of Commission of Crime Date of Conviction
(1) Robbery February 1, 1974 May 13, 1974
(2) Aggravated Robbery June 14, 1979 December 5, 1979
(3) Aggravated Robbery June 8, 1979 April 8, 1980
Both of the last two cases were set for trial on December 5, 1979- Washington was convicted in case number 2 (above) on that date. However, case number 3 was postponed until April 8, 1980. When the jury returned a guilty verdict in case number 3, which is the case before us, the prosecutor presented the two prior “convictions” for the purpose of sentence enhancement under the Arkansas Habitual Criminal Act. That act, Ark. Stat. Ann. § 41-1001, reads as follows:
... A defendant who is convicted of a felony who has previously been convicted of more than one (1) but less than four (4) felonies, or who has been found guilty of more than one (1) but less than four (4) felonies, may be sentenced to an extended term of imprisonment . . .
The Arkansas statute provides for an increased penalty for previous convictions, but fails to specify the chronological order of the commission and conviction of the previous offenses. The statutes of some states do specifically stipulate that the principal offense must be committed after the previous convictions. However, an A.L.R. Annotation makes it clear that:
[R]egardless of the difference in phraseology, the preponderance of authority supports the view that the prior convictions, in order to be available for imposition of increased punishment as one as a habitual offender, must precede the commission of the principal offense, that is, the latest prosecution in point of time.
As a New York court stated in People v. Kenyon, 39 Misc. 2d 876, 242 N.Y.S. 2d 156 (1936):
To sustain sentence as a multiple offender it must be shown that the offense in question occurred after the conviction for the crime used to support multiple offender status.
The Texas courts have recognized this distinction from earliest days when the court stated, in Long v. State, 36 Tex. 6 (1871):
Many of the Codes of the different States declare in express terms, that before the party can be visited with the increased penalty, it must appear that the subsequent offense was committed after the conviction of the former offense.
A Kentucky court, dealing with a case where two former “convictions” for felony were set up in an indictment for a third felony, was faced with a statute similar to that of the Arkansas statute, imposing an increased penalty only for those convicted a third time of a felony. Brown v. Commonwealth, 100 Ky. 127, 37 S.W. 496 (1896). The court explained its decision as follows:
The statute was manifestly intended to provide an increased penalty for a subsequent offense, in order to deter the offender from its reception. After punishment is imposed for the commission of a crime, the double penalty is held in terrorem over the criminal, for the purpose of effecting his reformation, and preventing further and subsequent offenses by him. . . . The reformatory object of the statute, namely, to provide a deterrent from further crime, would not be effected by a construction which gives to the offender no opportunity to reform.
It is this policy of deterrence that we must assume was the basis for the Arkansas Habitual Criminal Act. In interpreting this act in Finch v. State, 262 Ark. 313, 556 S.W. 2d 434 (1977), the court noted that the act “is based upon the theory that one who is a persistent offender warrants an increased punishment for the offense of which he is found guilty, for the protection of the community, because he has not been deterred by previous punishment.”
Since we reverse and remand this case based on Washington’s second argument, we do not find it necessary to consider at length his first argument, which was that the record did not show that he voluntarily and knowingly waived his right to counsel. At this trial, Washington asked to serve as his own counsel. The court agreed, but appointed a public defender to assist as co-counsel. The public defender conducted the entire trial except for the closing statement, which Washington insisted on making himself. In effect Washington asked the jury to find him guilty and it did. The record reflects that Washington voluntarily and knowingly waived his right to counsel but the trial judge should have made a record of his remarks. However, Washington was correctly permitted to proceed pro se as he had a constitutional right to do. Faretta v. California, 422 U.S. 806 (1975).
Reversed and remanded for a new trial. | [
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Darrell Hickman, Justice.
Alfred D. Harkness’s conviction in February, 1978, of burglary and attempt to commit rape was reversed by us in Harkness v. State, 267 Ark. 274, 590 S.W. 2d 277 (1979). Harkness was retried on the charges of burglary and attempt to commit rape. He was found guilty and sentenced to five years on the burglary charge and twenty years on the charge of attempted rape, with the sentences to run consecutively.
On appeal, Harkness’s only argument of error is that the trial court erred in refusing to allow voir dire of the jurors following a two-day break in their deliberations. We find no merit to the argument and affirm the judgment.
After deliberating, the jury reported it had some difficulty with the verdict. The trial judge said that he would be outside the county for two days and would allow the jury a two-day recess. The defendant made no objection to the impending separation. Prior to the recess, the court admonished the jury not to discuss the case among themselves or with anyone else and “not to read anything in the newspapres about the case, or listen to any radio or television reports concerning the case nor permit anyone to read any news report to you regarding the case.”
When court reconvened, the judge questioned the jurors as a body, making certain that none of them had ready any newspaper accounts or articles concerning the trial of the case and that they had not permitted anyone to read such articles to them. The attorney for Harkness made a motion that he be allowed to question the individual jurors further. He simply argued there might be a possibility of prejudice from publicity or discussion of the case with others. The motion was denied. There was no mention made of specific newspaper articles that, might have been seen by the jurors, and there was no showing of prejudice.
We do not find the court abused its discretion since the jurors had been admonished before the separation not to read newspaper accounts of the trial or case and, after reconven-: ing, the judge asked the jurors twice whether they had read any articles concerning the case. As the Minnesota Supreme Court stated in State v. De Zeler, 230 Minn. 39, 41 N.W. 2d 313 (1950):
When a jury has been clearly admonished not to do a certain act, the mere opportunity to violate the admonition, without a vestige of proof of its violation, provides no basis upon which a court of review can find that the trial court has abused its discretion in refusing to investigate the jury for such possible misconduct. As an essential of a fair and impartial trial, there is no presumption that the jury is likely to take advantage of every opportunity to disregard the cautionary instructions of the court.
The original decision to allow the jury to separate was within the court’s discretion as stated in Ark.' Stat. Ann. § 43-2121 (Repl. 1977). The burden was upon the defendant to show that the jury had been improperly influenced during the time that they were apart. Swagger v. State, 228 Ark. 51, 305 S.W. 2d 682 (1957); Reeves v. State, 84 Ark. 569, 106 S.W. 945 (1907). In his motion for a new trial, Harkness offered two newspaper articles that he claims could have influenced the jury during the separation. These were not presented to the trial court at the time the jury reconvened. The court was justified in assuming that, without a specific showing of misconduct by the jury, no prejudice resulted to the defendant. This is true even though the jury later reached a verdict of guilty. Johnson v. State, 190 Ark. 979, 82 S.W. 2d 521 (1935).
The decision of the trial court is affirmed.
Affirmed.
Purtle, J., dissents. | [
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John F. Stroud, Justice.
This is a suit filed in chancery court to foreclose the lien securing the balance of the purchase price and installation charge for two large illimunated motel and restaurant signs. Appellees filed a Motion for Summary Judgment which was granted by the trial court. We affirm the Chancellor as we agree that he properly granted the motion resulting in a dismissal of appellant’s complaint.
In 1973, appellant contracted with Erect-O-Therm Structures, Inc., to fabricate and install two large signs on certain premises owned by Erect-O-Therm in Prescott, Arkansas. The signs were to advertise the location of the Stockholm Restaurant and Check Inn Motel. To secure the unpaid balance of the purchase price, Erect-O-Therm granted appellant a security interest in the signs by the execution of a security agreement describing them. A financing statement was filed with the Secretary of State of Arkansas in 1974. The Security Agreement between appellant and Erect-O-Therm also provided that the signs were not to be so affixed or related to realty as to become a part of the realty. The larger of the two signs was hung some 80 feet from the ground on steel poles anchored in a concrete foundation four feet deep by 16 feet wide by 20 feet long. The smaller sign is supported by steel poles which rise 12 feet from their concrete foundation.
Subsequently, Erect-O-Therm experienced financial difficulties and apparently lost the motel and restaurant property, including the two signs, to Union Planters Bank of Memphis by virtue of the bank’s foreclosure of a mortgage on that realty. Appellees Conrad and Lillemore Beardsley then acquired the property from Union Planters. On January 31, 1979, appellant brought this foreclosure suit against appellees for the unpaid balance of the purchase price in the amount of $20,355.35, plus 10% of that amount as attorney’s fees, possession of the signs and a deficiency judgment against appellees for any deficit remaining after the proceeds of a resale of the signs are applied to the indebtedness. Appellees denied the material allegations of appellant’s com plaint by specifically alleging that they had not purchased the signs from appellant nor entered into any agreement with appellant, that they had no knowledge of any indebtedness for the signs nor had they assumed any such debt, and that the financing statement was filed in the wrong place. Appellees also filed a third party complaint against Union Planters, not involved in this appeal, where they allege that they should have judgment over against the bank for . any damages they suffer in this suit inasmuch as the bank represented to them that the property was free of liens and encumbrances. Some nine months thereafter, appellees filed a motion for summary judgment which was submitted on the pleadings, deposition of an officer of the appellant company, deposition of appellee Conrad Beardsley, and briefs. From a granting of the motion appellants bring this appeal, urging that the court erred in granting the motion for summary judgment.
It is well-settled that summary judgment should be granted only when a review of the pleadings, depositions and other filings reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56, Arkansas Rules of Civil Procedure. In the present case, in its order of January 24, 1980, the trial court found as follows:
1. The Defendants, Conrad Beardsley and Lillemore Beardsley, did not purchase the signs and related property referred to in the complaint from the Plaintiff, and there is no genuine issue as to this fact.
2. The Defendants, Conrad Beardsley and Lillemore Beardsley, are not personally liable to the plaintiff under the security agreement referred to in the complaint since these Defendants were not a party thereto and have not assumed the indebtedness referred to in said security agreement, and there is no genuine issue as to this fact.
3. As between the Plaintiff and Erect-O-Therm Structures, Inc., those parties agreed that the signs in question were not, and would not become fixtures, and so as between them and the signs are not fixtures, but as between the Plaintiff and Defendants, the signs, which include the supporting pipes, are fixtures. The Defendants were entitled to rely on the filings in the Nevada County Circuit Clerk’s office at the time they purchased property on which the signs are located on September 28, 1976. Ark. Stat. Ann. § 85-9-401 (addendum 1961) is the applicable statutory section since the filings involved in this case were made prior to the effective date of the 1973 amendment to Article 9 of the Uniform Commercial Code, and thereunder the proper place to file a security instrument in order to perfect securing interest was in the office where a mortgage on the real estate concerned would be filed or recorded. The Plaintiff filed its financing statement with the Secretary of State and not in the office of the Circuit Clerk of Nevada County, Arkansas, being the County where the real estate is located, and thus did not properly perfect its security interest in the signs as between it and the Defendants.
4. There are no genuine issues as to any material fact as between the Plaintiff and the Defendants, Conrad Beardsley and Lillemore Beardsley, d/d/a Check Inn and Check Inn; consequently, these Defendants are entitled to a judgment as a matter of law.
As to the trial court’s first and second rulings, we agree there clearly is no genuine issue as to those matters. The copy of the Security Agreement attached to appellant’s complaint reflects that the signs were purchased by Erect-O-Therm, not appellees, and that appellees were not a party to the agreement. There is nothing in the record to indicate, not even as an allegation, that appellees knew of or assumed the indebtedness when they purchased the motel and restaurant. The third ruling of the trial court, pertaining to the characterization of the signs as fixtures, is the only holding which appellant disputes. The trial court ruled that as between appellant and Erect-O-Therm the signs were not fixtures because of the provision in the security agreement which stated the signs would not be considered part of the realty. However, the trial court further held that, inasmuch as it was undisputed that appellees were not parties to the security agreement and were without knowledge of the aforementioned provision, the signs were fixtures as between appellant and appellees and there is no genuine issue as to that fact. These large signs anchored deep in concrete were so clearly fixtures, appellees had the right to rely on the records in the office of the Circuit Clerk of Nevada County, where filing covering fixtures are to be made, to determine if a lien was in existence at the time of their purchase. A good faith filing made in the wrong place (in this case the office of the Secretary of State) was not constructive notice to appellees as it is notice only to “any person who has knowledge of the contents of such financing statement.” Ark. Stat. Ann. § 85-9-401 (2) (addendum 1961).
While is is true that upon motion for summary judgment the trial court should review the record in the light most favorable to the party resisting the motion and resolve any doubts or inferences against the movant, where the movant makes a prima facie showing of entitlement to summary judgment, the respondent must discard the shielding cloak of formal allegations and meet proof with proof by showing a genuine issue as to a material fact. Hughes Western World, Inc. v. Westmoor Mfg. Co., 269 Ark. 300, 601 S.W. 2d 826 (1980); Coffelt v. Ark. Power & Light Co., 248 Ark. 313, 451 S.W. 2d 881 (1970). Here, appellant made the bare allegation that there was a genuine issue of fact as to whether the signs were fixtures but offered only the Security Agreement as proof of that contention. This did not meet appellant’s burden of going forward with the proof. As noted previously, it was undisputed in the record that appellees were not in any way involved with the purchase of the signs from appellant; that they had not assumed the indebtedness referred to in the Security Agreement; that they had no knowledge of the agreement between appellant and Erect-O-Therm; and that appellant had not filed the financing statement in the Nevada County Circuit Clerk’s office prior to appellees’ purchase. As appellant failed to file the financing statement in Nevada County, as the Security Agreement was not determinative of the rights of obligations of appellees, and as the Security Agreement was the only proof offered by appellant to support his contention that summary judgment should not lie, we cannot say that there was a genuine issue as to any material fact or that the trial court erred in granting appellees’ Motion for Summary Judgment.
Affirmed.
Purtle, J., not participating.
Fogieman, C.J., dissents. | [
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John A. Fogleman, Chief Justice.
Appellants were tried jointly on separate charges of rape, allegedly committed upon Christopher Kanniard on March 4, 1979. Both were found guilty. Gregory Louis Waters was sentenced to 30 years imprisonment and fined $10,000. Carl Adams was sentenced to life imprisonment and fined $15,000. From these judgments pursuant to the jury verdict, appellants bring this appeal asserting four grounds for reversal. We find reversible error on only one of them, i.e., the allegation that the jury wheel selected for the year by the jury commissioners did not represent a fair cross-section of Howard County as a result of discrimination against black people.
As unusual procedure seems to have been followd. No written motion was filed. No motion was made until after a jury had been selected. At that time, the attorney for Adams moved to quash the panel because “the percentage of black people in the jury wheel is not sufficient.” The attorney for Waters joined in this motion. The trial judge, sitting on assignment, denied the motion, saying that he was unfamiliar with the jury selection process in this circuit court but felt sure that whatever substance there was in the motion could be reached. He found it necessary, at that time, to proceed with the trial. The jury returned a verdict of guilty on September 21, 1979.
On October 10, 1979, a hearing was commenced on the motions of Waters and Adams to quash the jury panel. This hearing continued on November 5 and 6. One of the jury commisioners testified that the regular circuit judge, who later disqualified himself, had instructed the jury commissioners, by which the jury panel was selected, to use their “discrimination” and select they thought should serve on a jury. Undoubtedly, the commisioners were actually told to use their discretion.
The Sheriff of Howard County testified that he knew nearly everyone in Howard County. He testified that he had examined the master list of 600 names drawn from the jury wheel selected by the jury commissioners and testified that there were definitely 23 blacks on the list and possibly three or four more. He said that of the 100 names on the panel for the trial of this case, four were black. The Sheriff estimated that black people constituted 20 percent of the total population of the county. This estimate finds support in the fact that the census report for 1970 shows that the percentage of black people in the Howard County population was 20.32. Of those over the age of 21 years, 17.21 percent were black and of those over 18, 17.73 percent were black. Even 27 black persons on the list of names placed in the jury wheel would constitute only 4.5 percent.
Each of the five jury commissioners, four of whom were white, selected names for the jury wheel from persons they knew. The Commissioners were told that each of them should select between 150 and 200 names for the jury wheel. The sole black commissioner submitted only 100 names. Three of the commissioners selected 90 to 100 percent of the names they listed from persons known to at least one of them personally, and the remainder at random. One of the commissioners said that she knew, or knew of, 200 or 300 black persons who would be qualified for jury service and thought she named one of them on her list of about 150. She listed only the names of persons she knew. They were taken from a part of the voter registration list which contained at least 300 names. One commissioner who lived in Nashville said that he selected people from the Nashville area but that he also selected a lot he did not know by picking them at random from outlying communities. He operated a manufacturing plant at Nashville at which 75 percent of the employees were black. He picked several of those workers. He could not remember seeing any names of persons from Dierks, Tollett or Nashville on the list furnished him for selection purposes. Another commissioner said that he selected five black persons for the master list, but most of the persons he selected were from Dierks, where he operated a hardware store and had lived all his life, and where there were only two black people. Another commissioner lived in a community around Umpire where there was not a single black person.
According to the sheriff, there are two communities in the county, Tollett and Longview, in which the black popula tion exceeds 20 percent. He said that there were probably 300 voters in Tollett, where black people constitute 90 percent of the population. In the Longview community, the population is 50 percent black. On two panels of 100 names each, which had previously been drawn from the master list, there were ten black persons, but none were from either Tollett or Longview.
Before we can hold for appellants on this issue, we must answer two questions in the affirmative. First, did appellants make a prima facie showing of racial discrimination in the jury selection process? And, if so, was it rebutted by the state? We find that a prima facie case was made but not overcome.
A black defendant is not entitled to a jury containing members of his race or to demand a proportionate number of his race on a venire or jury roll from which the petit jury is drawn. Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965); Hernandez v. Texas, 347 U.S. 475, 74 S. Ct. 667, 98 L. Ed 8966 (1954); Apodoca v. Oregon, 406 U.S. 404, 92 S. Ct. 1628, 32 L. Ed. 2d 184 (1972); Williams v. State, 254 Ark. 799, 496 S.W. 2d 395; Turner v. State, 258 Ark. 425, 527 S.W. 2d 580. It is the state’s purposeful or deliberate denial to Negroes, on account of race, of participation in the administration of justice by selection for jury service, that violates the equal protection clause. Swain v. Alabama, supra; Castaneda v. Partida, 430 U.S. 482, 97 S. Ct. 1272, 51 L. Ed. 2d 498 (1977). A defendant in a criminal case is entitled to require that the state not deliberately or systematically deny to members of his race the right to participate, as jurors, in the administration of justice. Alexander v. Louisiana, 405 U.S. 625, 92 S. Ct. 1221, 31 L. Ed. 2d 536 (1972); Apodaca v. Oregon, supra.
The primary question must be directed to the number, or percentage, of black persons on the original list placed in the jury wheel, since the drawing of names from the panel is random. The burden of showing facts which permit an inference or purposeful exclusion or limitation for jury service on account of race is on the defendant. Williams v. State, supra. Purposeful discrimination is not satisfactorily proven by showing that an identifiable group in a community is underrepresented by as much as 10 percent, because such a disparity, standing alone, reflects no studied attempt to include or exclude a specified number of that group. Swain v. Alabama, supra. Here there was a disparity of 15.82 percent (20.32-4.5). In considering whether appellants have made the required showing, comparison of the proportion of blacks in the total population to the proportion called to serve is the test. Castaneda v. Partida, supra.
In order to make a prima facie case, a substantial disparity or underrepresentation must be shown. Castaneda v. Partida, supra. We must determine, as best we can, what constitutes a substantial disparity. It seems that a disparity of 18 percent strongly points to the conclusion that discrimination is present. Whitus v. Georgia, 385 U.S. 545, 87 S. Ct. 643, 17 L. Ed. 2d 599 (1967). We have held that a 21.5 percent disparity is sufficient as a basis for establishing a prima facie case. Hall v. State, 259 Ark. 815, 537 S.W. 2d 155. We seem to have also found a disparity of 18.33 percent to be sufficient. Williams v. State, supra. On the other hand, we appear to have found that a disparity of 12.5 percent was not sufficient. Turner v. State, supra. The disparity shown here appears to us to afford an adequate basis for a finding that a prima facie case has been shown. See Sims v. Georgia, 389 U.S. 404, 88 S. Ct. 523, 19 L. Ed. 2d 634 (1967), where the disparity was 14.6 percent.
We are not unmindful of our decision in Murrah v. State, 253 Ark. 432, 486 S.W. 2d 897, which would lead to a contrary conclusion. The United States Court of Appeals for the Eighth Circuit disagreed with us. Murrah v. Arkansas, 532 F. 2d 105 (8th Cir., 1976). We do not concede that our decision in Murrah is not controlling here solely on the basis of the contrary conclusion by the Eighth Circuit. Decisions of the United States Supreme Court subsequent to our decision in Murrah do, however, lend support to the decision of the Eighth Circuit rather than to ours. See Castaneda v. Partida, supra. Our own cases of Williams v. State, supra, and Hall v. State, supra, seem to lead to a conclusion different from that we reached in Murrah.
A substantial disparity between the percentage of blacks in the population and the percentage in the jury wheel, standing alone, is not sufficient to make a prima facie case of discrimination. Thomas v. Texas, 212 U.S. 278, 29 S. Ct. 393, 53 L. Ed. 512 (1909); Akins v. Texas, 325 U.S. 398, 65 S. Ct. 1276, 89 L. Ed. 1692 (1945). See also, United States v. Test, 550 F. 2d 577 (10 Cir., 1976). There must also have been either positive indicia of discrimination or proof that the selection procedure provided an opportunity for discrmination. Turner v. Fouche, 396 U.S. 346, 90 S. Ct. 532, 24 L. Ed. 2d 567 (1970); Hall v. State, supra; Turner v. State, supra; Murrah v. State, supra. Where the selection is committed to the discretion of jury commissioners, the use of their subjective standards in the exercise of that discretion may afford that opportunity. If the disparity originated at a point where the commissioners invoked their subjective judgment rather than objective criteria, then the prima facie case is complete. Turner v. Touche, supra. The “key man” system which relies upon the jury commisioners to select from the community at large is a highly subjective process which is subject to abuse. Castaneda v. Partida, supra. A system similar to the one used here has been characterized as a “key man” system. Murrah v. Arkansas, supra.
The evidence here is overwhelming that the commissioners did apply subjective standards. Only one commissioner said that he selected any names at random. He said that he did this by trying to select a certain number from each outlying community from a list, but he could not remember seeing names from Dierks, Tollett, or Nashvile, the place he lived and did business. One attributed the presence of only five black persons on his list to the fact that there were no black people in Dierks, where he lived and operated a store, and only two in that part of the county. Ninety percent of the list another commissioner submitted was selected from people he knew personally or by representation. He knew very few black people. He “guessed” that none of those on this list he did not know were black. Of the 10 percent he picked at random, he could not say which were black and which were not.
It was proper for the jury commisssioners to be instructed to select persons who have the courage of their convictions and are honest, trustworthy, fair-minded and impartial. None of the jury commissioners made any effort to ascertain any information about persons not personally known to them, or one of them. Where the statutory scheme vests wide discretion in the selection of persons for jury duty and, in exercising that discretion, selection of names for a jury list is limited to the commissioners’ own personal acquaintances, discrimination can arise from commissioners who know no Negroes, as well as from those who know, but eliminate, them. Smith v. Texas, 311 U.S. 128, 61 S. Ct. 164, 85 L. Ed. 84 (1940). It is the constitutional duty of jury commissioners not to pursue a course of conduct in the administration of their offices which would operate to discriminate in the selection of potential jurors on racial grounds, and that duty may be violated by a failure to make an effort to ascertain the identity of members of the black race in the county who were qualified to serve as jurors. Hill v. Texas, 316 U.S. 400, 62 S. Ct. 1159, 86 L. Ed. 1559 (1942). In Hill, the United States Supreme Court said:
"“"‘"Discrimination can arise from the action of commissioners who exclude all negroes whom they do not know to be qualified and who neither know nor seek to learn whether there are in fact any qualified to serve. In such a case discrimination necessarily results where there are qualified negroes available for jury service. ***
Unfamiliarity with Negroes in the county and an inadequate arrangement for remedying this deficiency do not permit us to assume that further inquiry would not have led to the discovery of additional qualified persons of the black race in Howard County. Turner v. Fouche, 396 U.S. 346, 90 S. Ct. 532, 24 L. Ed 2d 567 (1970). The extent of the racial disparity in the percentage of names placed in the jury wheel coupled with the opportunity of the jury commissioners to discriminate by the application of subjective standards made a prima facie case of racial discrimination.
Upon establishment of a prima facie case, the state has the burden of rebutting the inference of intentional discrimination by showing that constitutionally permissible procedures were followed in the selection of the names to be placed in the jury wheel. Castaneda v. Partida, 430 U.S. 482, 97 S. Ct. 1272, 51 L. Ed. 2d 498 (1977); Turner v. Fouche, supra; Taylor v. Louisiana, 419 U.S. 522, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1974); Alexander v. Louisiana, 405 U.S. 625, 92 S. Ct. 1221, 31 L. Ed. 2d 536 (1972); Norris v. Alabama, 294 U.S. 587, 55 S. Ct. 579, 79 L. Ed 1074 (1935). This requires the state to show that the results were reached through racially neutral selection criteria and procedures. Alexander v. Louisiana, supra.
The state attempts to meet its burden of proof and to justify the actions of the jury commissioners on the ground that no overt, purposeful racial discrimination has been shown and that none of the commissioners displayed any racial animus. There is no instance of any overt act. “Purposeful discrimination,” however, need not be conscious, deliberate discrmination. Hernandez v. Texas, 347 U.S. 475, 74 S. Ct. 667, 98 L. Ed. 866 (1954).
The disavowal by the jury commissioners of discrimination, or of the intent to discriminate, was not sufficient to meet the burden of overcoming the prima facie case. Hernandez v. Texas, supra; Norris v. Alabama, supra; Smith v. Texas, supra. See also, Avery v. Georgia, 345 U.S. 559, 73 S. Ct. 891, 97 L. Ed. 1244 (1953). There may be unconstitutional discrimination even though it is not consciously done. Hernandez v. Texas, supra. Even the testimony of the commissioners here that they neither excluded or included anyone because of race is not sufficient to overcome, a prima facie case. Turner v. Fouche, supra; Whitus v. Georgia, 385 U.S. 545, 87 S. Ct. 643, 17 L. Ed 599 (1967). See also, Reece v. Georgia, 350 U.S. 85, 76 S. Ct. 167, 100 L. Ed. 77, reh. den. 350 U.S. 943, 76 S. Ct. 297, 100 L. Ed 822 (1956); Alexander v. Louisiana, supra. It would not matter that at least one of the commissioners knew personally every qualified person in the county. Sims v. Georgia, 389 U.S. 404, 88 S. Ct. 523, 19 L. Ed. 2d 634 (1967).
The presumption that officials perform their duties properly is a factor which may be considered in determining whether there actually was discrimination. Turner v. State, supra. It will not, however, discharge the state’s burden. Jones v. Georgia, 389 U.S. 24, 88 S. Ct. 4, 19 L. Ed. 2d 25 (1967). The fact that the jury commission was 80 percent white and 20 percent black, in the same proportion as the county’s population, is also a circumstance which would tend to show that there was no intentional discrimination. Murrah v. State, 253 Ark. 432, 486 S.W. 2d 897. This fact would not itself be sufficient to rebut the prima facie showing. Castaneda v. Partida, supra. The testimony that the list submitted by the black commissioner contained only 100 names, while the other commissioners’ contained 150 or more, because all the others had completed their lists when he had selected only 100 of the 150 names he was directed to submit tends to negate this factor. It was completely negated by this commissioner’s testimony that he could find only eight names on the master list that he had put on his list and that he could not find other names of black persons from Shaw and Tollett he had listed. He could not remember having been furnished any list from which to choose names.
It is not enough that the commissioners honestly endeavored to discharge their duty, if they did, in fact, discriminate against black persons in the selection of the jury lists. Thomas v. Thomas, 212 U.S. 278, 29 S. Ct. 393, 53 L. Ed. 512 (1909). Since the opportunity for discrimination was present, we must be able to say that it was not resorted to before we can hold against appellants’ convictions. Alexander v. Louisiana, supra. We are unable to do this.
We do not mean to suggest that only a random system of selection will meet constitutional standards. An imperfect system is not equivalent to purposeful discrimination. Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965); Thomas v. Texas, supra. Our statutes governing the selection of names to be placed in the jury wheel do not appear to be unconstitutional on their face because they are capable of being carried out without any racial discrimination whatever. Brown v. Allen, 344 U.S. 443, 73 S. Ct. 397, 97 L. Ed. 469 (1953); Carter v. Greene County, 396 U.S. 320, 90 S. Ct. 518, 24 L. Ed. 2d 549 (1970).
Although the evidence of the guilt of appellants is rather strong, the convictions of black defendants must be reversed where the evidence shows racial discrimination in the jury selection process. Avery v. Georgia, supra.
Appellants contend that the giving of a revised version of AMCI 301 by which the jury was told that if it had a reasonable doubt as to a defendant’s guilt of all offenses, “you may find him not guilty” was reversible error. The revision occurred by substituting the word “may” for the word “must” in the instruction approved as AMCI 301. This was error but it does not constitute grounds for reversal. No objection was made, so the question arises for the first time on appeal. The error could have easily been corrected if it had been specifically pointed out. Appellant makes an argument that we should overlook the want of an objection to the instruction. This is an attempt to invoke a plain error rule, which we do not recognize. Wicks v. State, 270 Ark. 781, 606 S.W. 2d 366 (1980); Smith v. State, 268 Ark. 282, 595 S.W. 2d 671 (1980). This error is definitely not the exceptional type that calls for the court to correct as a serious one. See Wicks v. State, supra. The trial judge gave AMCI 110 by which the jury was informed that it must find a defendant guilty beyond a reasonable doubt, before returning a verdict of guilty and AMCI 109 on the presumption of innocence. When the instructions are considered as a whole, it is highly unlikely that the jury could have been misled. We have previously rejected the arguments advanced by appellants. Haynes v. State, 270 Ark. 685, 606 S.W. 2d 583 (1980). This error should not be repeated on retrial.
Appellant Adams also contends that the imposition of a fife sentence upon him by a jury exercising “standardless discretion” violated his right to due process of law and denied him “rights guaranteed by the Eighth and Fourteenth Amendments.” This issue is raised for the first time on appeal. We find no indication in the abstract of the record that Adams objected to the instructions given the jury by the trial court or to the verdict forms supplied to the jury. We find no request for any instruction affording guidelines to the jury for imposition of a life sentence. The suggestion that the absence of independent evidence to show that the 17-year-old victim suffered psychological injury by being forced to perform two separate acts of fellation upon Adams, as the jury found, would render the imposition of a life sentence improper, strikes us as being rather farfetched. In any event, the arguments advanced on this point are the same ones advanced and rejected by us in Shepherd v. State, 270 Ark. 457, 605 S.W. 2d 414 (1980) and Wicks v. State, supra. Upon the authority of those cases, we hold this argument to be without merit.
Appellants argue that there was insufficient evidence to support the jury verdicts against them. This argument is obviously an afterthought. Neither appellant ever moved for a directed verdict. Waters contends that the record is devoid of any evidence of any act of “forcible compulsion” by him to cause Kanniard to perform two separate acts of fellation on Waters. Forcible compulsion means physical force, or a threat, express or implied, of death or physical injury to or kidnapping of any person. All the acts charged against appellants and Leroy Miles, another occupant of the jail cell in the Howard county jail in which Kanniard, Waters and Adams were being held, occurred before daylight on March 4, 1979, after Adams had been moved from another cell. Kanniard weighed 120 pounds. Adams was 29 years of age, six feet five inches tall and weighed 250 pounds. According to Kanniard, he was first attacked by Miles, who was assisted by Waters in pulling Kanniard off a top bunk in the cell. Kanniard related that after Miles had said, “Let’s knock him out and take it,” Adams had pushed him into a shower, where Miles forcibly committed anal intercourse upon him, and then forced him to commit fellation upon Adams. Kanniard testified that Waters then said that it was his turn and that Adams then caused Kanniard to go to Waters’ bunk by threatening injury to him if he did not. Kanniard said that Waters made him perform an act of fellation.
Even if Waters did not make the threats and used no physical force himself, the element of forcible compulsion is present when the acts constituting it are done by an accomplice or accessory in the presence of the accused. See Watford v. State, 214 Ark. 423, 216 S.W. 2d 781; Ark. Stat. Ann. §§ 41-301 - 303 (Repl. 1977). The record discloses that an instruction on the criminal responsibility of an accomplice was given at the request of appellants or one of them. No objection to the giving of this instruction was made. Kanniard testified that Waters and Miles could have heard, and did hear, the threats made by Adams. He described the size of the jail cell and said that it would have been very dif ficult for Miles and Waters not to have heard threats made by Adams. A sketch of the cell was introduced. The jury heard the testimony and saw the sketch. There was substantial evidence from which it could have found forcible compulsion attributable to Waters. Miles, Waters, and Adams acted in concert, if the jury believed Kanniard’s testimony.
Appellant Waters makes much of the fact that Kanniard misidentified him as Miles, more than once during the course of the trial. Kanniard, however, was certain that both the defendants in the courtroom were in the jail cell with him. He said he was not sure he could “pick Gregory Waters out.” Later, he said that he could be mistaken in distinguishing between Miles and Waters in his identification, and that he could have “mixed them up.” On redirect examination, Kanniard was always positive in his identification of Adams. He said that Waters had stayed on his bunk in the cell nearly all the time that they were in that cell and that at the time Waters had some “fuzz” growing on his face. On redirect examination, he said that he was not absolutely sure whether the defendant in the courtroom beside Adams was Miles or Waters. When another person was brought into the courtroom, Kanniard recognized and positively identified him as Miles (who had previously entered a plea of guilty to the charges against him). Kanniard said that this was the first time he had seen Miles since the night of the alleged crimes against him. He then said that the two defendants in the courtoom were Waters and Adams. Resolution of the question of identification was a matter for the jury.
We find the evidence supporting the jury verdict to be substantial. We find no error prejudicial to Adams on any other ground.
The judgments are reversed and the cause remanded.
Mr. Justice Hickman and Mr Justice Stroud dissent.
The total population of Howard County as of 1970 was 11,412 with 2,-319 blacks. In the over 18 category, the voting population, 1,397 were black out of a 7,877 total. | [
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Robert L. Brown, Justice.
Ronnie Haynes appeals from three felony convictions for rape, robbery, and theft and argues that the prosecutor commented on parole in her closing argument during the penalty phase of the trial. He further contends that the circuit court erred in resentencing him on his Rule 37 petition after his prior felonies had been reversed by this court. We hold that no prejudice occurred, and we affirm.
On June 11,1991, an information was filed charging Haynes with rape, aggravated robbery, and theft of property in connection with a May 3, 1991 attack upon the victim in this case. The information was subsequently amended to add a habitual-offender charge. This matter was tried, and the jury returned a verdict of guilty on all offenses. During the penalty phase of the trial, the prosecutor argued that she was asking the jury for the maximum penalty on all offenses because “we don’t know how long life is, but we do know how long 500 plus years is.” Haynes moved for a mistrial claiming that the prosecutor was commenting on parole. The court denied the motion. The jury thereafter sentenced appellant to two life sentences for rape and robbery, to run consecutively, and a forty-year sentence for theft, to run concurrently. The following events then transpired:
- On June 9, 1992, judgment was entered.
- On June 10, 1992, Haynes filed a pro se motion entitled Motion for a New Trial which was filed pursuant to Rule 37 and which asserted ineffective counsel as the sole ground for relief.
- On June 15, 1992, this court reversed the prior convictions that formed the basis for Haynes’s habitual-offender status. Haynes v. State, 309 Ark. 583, 832 S.W.2d 479 (1992).
- On June 25, 1992, Haynes filed a notice of appeal from his rape, robbery, and theft convictions.
- On July 16, 1992, Haynes filed a Rule 37 Petition seeking to set aside the judgments and dismiss on double jeopardy grounds or, in the alternative, for a new trial.
The Rule 37 Petition filed on July 16,1992, was heard by the circuit court on August 11, 1992, and denied. Haynes was then resentenced by the court and received life imprisonment for rape, twenty years for aggravated robbery, and ten years for theft of property, to run consecutively.
Haynes first contends that the trial court erred in failing to grant his motion for mistrial because the prosecutor referred to parole by implication during her closing argument in the penalty phase. He argues that the fact that the jury returned such a harsh sentence is evidence of the resulting prejudice. His position is further bolstered, he contends, by the fact that the jury, during its deliberations, sent the court a note questioning at what point Haynes would be eligible for parole after receiving a life sentence.
The state raises as a preliminary argument lack of jurisdiction in this court because there was no timely notice of appeal given. Specifically, the state argues that after judgment was entered, Haynes filed a pro se motion for new trial. Prior to the date the motion for new trial was deemed denied, Haynes filed a notice of appeal. Therefore, according to the state, the notice of appeal was ineffective under Ark. R. App. P. 4(c), and no valid appeal was taken.
The state’s argument is without merit. Though styled as pro se motion for new trial, it cannot be seriously contended that the motion was anything other than one for Rule 37 relief. The motion refers to Rule 37 as its authority and all of its allegations concern the collateral issue of ineffective counsel. In determining what a motion is, we look to content and substance — not to titles. Cornett v. Prather, 293 Ark. 108, 737 S.W.2d 159 (1987); see also Chambers v. State, 304 Ark. 663, 803 S.W.2d 932 (1991) (per curiam). Because the motion was not in fact one for a new trial, the notice of appeal filed on June 25, 1992, effectively preserved the issue of the prosecutor’s argument for our review.
Turning to the merits, we have held that neither the trial court nor counsel should comment on parole. See Simmons v. State, 278 Ark. 305, 645 S.W.2d 680 (1983). The rationale for this rule was announced in Andrews v. State, 251 Ark. 279, 472 S.W.2d 86 (1971), where we stated that parole should not be discussed because the jury would be inclined to impose excessive punishment in order to compensate for early release.
The prosecutor’s comment regarding life and five hundred years certainly raises suspicions about the intent behind the remark. Nonetheless, we are not prepared to state with certainty that it was a comment on parole sufficient to invoke the drastic remedy of a mistrial. A mistrial is only granted when there has been an error so prejudicial that justice cannot be served by continuing the trial. See Magar v. State, 308 Ark. 380, 826 S.W.2d 221 (1992); Muhammed v. State, 27 Ark. App. 188, 769 S.W.2d 33 (1989). In such cases, the trial court is granted considerable discretion in determining whether to grant a motion for mistrial, and only when this court determines that the trial court abused its discretion will a decision to deny a motion for mistrial be reversed. Dixon v. State, 310 Ark. 460, S.W.2d (1992).
We note that Haynes argues that the trial court should have given a curative instruction. This argument suggests that a remedy less drastic than a mistrial might have been invoked, yet Haynes did not avail himself of this lesser remedy. It was his burden to request curative relief, and his failure to request a limiting instruction cannot inure to his benefit on appeal. Sullinger v. State, 310 Ark. 690, 840 S.W.2d 797 (1992). Furthermore, if anything, an argument that he was entitled to a curative instruction undermines his argument that the error was so pronounced that only a mistrial could have rectified the situation.
In sum, we cannot say under these facts that the circuit court abused its discretion in refusing to grant a mistrial.
For his second point, Haynes objects to the resentencing by the circuit court pursuant to his Rule 37 petition and argues that he was entitled to dismissal of the charges as double jeopardy or, in the alternative, resentencing by a jury. Rule 37, however, is not properly before the court because an appellant can not simultaneously pursue a direct appeal and Rule 37 relief. Ark. R. Crim. P. 37.2(a); see also Westbrook v. State, 286 Ark. 192, 691 S.W.2d 123 (1985). If a conviction is appealed, the circuit court is not to entertain a Rule 37 proceeding while that appeal is pending. Ark. R. Crim. P. 37.2(a); see also Edwards v. City of Conway, 300 Ark. 135, 777 S.W.2d 583 (1989). The circuit court erred in addressing the Rule 37 petition prematurely, and we will not consider the issue raised in a Rule 37 petition at this juncture.
The record has been examined in accordance with Ark. Sup. Ct. R. 11(f), and it has been determined that there were no rulings adverse to the appellant which constituted prejudicial error.
Affirmed. | [
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John I. Purtle, Justice.
Lincoln-Desha Telephone Company, Inc. filed suit before the Arkansas Public Service Commission for a telephone rate increase in the amount of $120,619- After a hearing the PSC issued an order granting Lincoln-Desha a rate increase of $65,337 per annum. Appellee appealed the order of the PSC to the Pulaski Circuit Court. The circuit court determined that the PSC, by use of a “double leverage” method, had improperly prevented Lincoln-Desha from obtaining a satisfactory rate. The court found that the “double leverage” methodology was in itself arbitrary and discriminatory in violation of the statutes of the State of Arkansas and the Constitutions of the State of Arkansas and the United States. The court ordered the case remanded to the PSC with directions to properly fix and approve Lincoln’s return without regard to the double leverage.
On appeal the PSC argues for reversal that the trial court exceeded the scope of jurisdictional review of the Commission’s decision to recognize the double leverage concept and the court erred in holding that the Commission’s recognition of the double leverage concept was arbitrary, discriminatory and confiscatory. We agree with the contentions of the appellant.
On September 10, 1976, appellee filed an application with the appellant for an annual rate increase in the amount of $120,619- A hearing was held on the application on March 7, 1977, at which time the appellant granted appellee a rate increase of $65,337. The Commission recognized that Continental Telephone Company, Inc. was the parent company and owned all the stock of appellee. The appellant utilized the double leverage system in reaching its decision.
The appellee appealed the order to the Pulaski Circuit Court. In the circuit court it was disclosed that the order of the PSC allowed a 9.77% rate factor on the investments for Lincoln-Desha. Apparently, the PSC utilizes the double leverage method only in cases of a wholly owned subsidiary such as the appellee. The trial court reversed the PSC solely on the ground that it was improper to use the double leverage concept in figuring the rate of return. The court stated that double leverage as applied in this case was arbitrary and discriminatory and resulted in rates that did not permit appellee to earn a fair rate on its investments and was confiscatory in nature and violated the statutes of the State of Arkansas and the Constitutions of Arkansas and the United States.
Ark. Stat. Ann. § 73-229.1 (b) (Repl. 1979) provides that on appeal to the circuit court the findings of the PSC as to facts, if supported by substantial evidence, shall be conclusive. The review by the circuit court shall not be extended further than whether the Commission’s findings are so supported by substantial evidence and whether the Commission has regularly pursued its authority, including a determination of whether the order or decision under review violated any rights of the petitioner under the laws or Constitution of the United States or of the State of Arkansas. The technical rules of evidence do not apply in such cases. Section (d) of this statute provides for an appeal to the supreme court by any party to the circuit court action. The matter will be viewed in the supreme court in a manner applicable to other civil appeals from circuit courts.
The only question to be decided by this court is the validity of the methodology used by the Commission to determine the rate of return. The methodology used by the PSC is termed “double leverage.” It has been said that “double leverage is merely an extension of the concept of leverage to a parent-subsidiary corporate relationship.” New England Telephone & Telegraph Co. v. Public Utilities Commission, 390 A. 2d 8 (Me. 1978). Corporations are usually financed partly with debt capital and partly with equity capital. “Leverage” is a financial term used to describe the situation in which a corporation is funded by debt in addition to the equity supplied by the stockholders. A corporation is said to be “leveraged” to the extent that debt is included in its capital structure. The leverage arises from the advantage gained by equity holders through the rental of capital at a lower rate than the return they receive on their equity. Thus, we see that by use of leverage the equity owners are able to earn an over-all rate of return in excess of the cost of capital. The added earnings above the costs inure to the benefit of the stockholders as they then receive a higher rate of return than if the institution had been financed entirely by equity.
The limited review by the circuit court of a Commission’s decision is set out in Ark. Stat. Ann. § 73-229-1 (b) (Repl. 1979) and is partially described as follows:
. . . The findings of the Commission as to the facts, if supported by substantial evidence, shall be conclusive. The review shall not exceed further than to determine whether the Commission’s findings are so supported by substantial evidence, and whether the Commission has regularly pursued its authority, including a determination of whether the order or decision under review violated any right of the petitioner under the laws or the Constitution of the United States or of the State of Arkansas. ...
Therefore, it may be seen that the scope of review by the circuit court is very narrow and limited. On the other hand, the discretion of the Commission is very broad. Hibbs v. Public Service Commission, 251 Ark. 130, 471 S.W. 2d 367 (1971); Town of Emerson v. Ark. Public Service Commission, 227 Ark. 20, 295 S.W. 2d 778 (1956). As previously stated, the primary concern before this court is whether the methodology used by the Commission resulted in a fair rate of return for appellee. The PSC also must take into consideration the effect the rate of return has on the ratepayers.
The double leverage method is but one of several used by the PSC in determining matters presented to them. It appears that double leverage has been recognized as a valid formula in New York, Iowa, Rhode Island, Maine, Texas, Wisconsin and Minnesota. This court approved the application, by the PSC, of the double leverage method in Southwestern Bell Telephone Co. v. Arkansas Public Service Commission, 267 Ark. 550, 593 S.W. 2d 434 (1980). In SWB v. PSC we held that the result reached, not the method employed, controls. Judicial inquiry is concluded if the total effect of the rate order is not unjust, unreasonable, unlawful or dis criminatory. Federal Power Comm’n v. Hope Natural Gas Co., 320 U.S. 591 (1944).
The PSC acts in a legislative capacity and not in a judicial one. Therefore, we view the orders of the Commission as having the same force as would enactment of the General Assembly. Bluefield Water Works & Improvement Co. v. Public Service Comm’n, 262 U.S. 679 (1923).
The rate of return as established by the PSC was 9-77%. The testimony indicated if the double leverage theory had not been used in this case the result would have been to allow Continental Telephone Company’s common equity holders to realize a return of approximately 16%. We should not be concerned with the methodology used by the Commission in arriving at the result. No public utility has a vested right to any particular method of evaluation. City of Fort Smith v. Southwestern Bell Telephone Co., 220 Ark. 70, 247 S.W. 2d 474 (1952).
We believe there was substantial evidence to support the finding of the Commission and the trial court was in error in holding that the double leverage method resulted in discrimination or confiscation of the appellee’s property. Therefore, the case is remanded to the trial court with directions to reinstate the order of the Public Service Commission allowing appellee to receive a rate increase of $65,337.
Reversed and remanded. | [
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Robert L. Brown, Justice.
The appellant, Ripple Wayne Sutton, raises numerous issues on appeal. One of these issues has merit — the circuit court’s failure to sever the charge for a felon in possession of a weapon for trial purposes. We reverse on that point and remand for a new trial.
On August 13, 1990, Lyle Boliou was murdered. His body was found in a pickup truck parked by an offshoot of the St. Francis River near Paragould. He had three gunshot wounds to the back of the head. On December 10,1990, Sutton was arrested on a felon/firearm charge, the firearm being a .22 caliber pistol. Sutton had been convicted of grand larceny in 1974. Six months later, on May 6, 1991, he was arrested for the murder of Boliou and subsequently charged with first-degree murder. At the time, Kathy Riggsbee, who was an eyewitness to the shooting and who had been charged with hindering the apprehension of Sutton, was also under suspicion as an accomplice to the murder. She told investigating authorities that Sutton was the culprit.
The two charges, felon/firearm and first-degree murder, were then consolidated for trial. On August 19,1991, which wasa week before trial, Sutton orally moved the trial court to sever the two charges so that the murder charge could be tried first. Sutton’s counsel advised the court that he would be filing a written motion before trial. He did so on the day of the trial, August 26, 1991, and the motion was denied. The court’s stated reason for denying the motion was that the two offenses joined were part of a single scheme and plan, which eliminated grounds for severance under Ark. R. Crim. P. 22.2(a). Sutton further moved in limine to exclude cross-examination on his felony conviction because it was more than ten years old. That motion, too, was denied.
The trial took place over three days. A certified copy of Sutton’s 1974 conviction for grand larceny was introduced as part of the state’s case-in-chief. No additional objection was made to the felony conviction at time of introduction. At the end of the trial, the jury was instructed that the conviction could only be considered for credibility purposes. Sutton was convicted on both charges and sentenced to life imprisonment on the murder charge and six years on the weapon charge, with the sentences to be served consecutively.
I. JOINDER OF THE FELON/FIREARM CHARGE
In the last year and a half, we have examined the prejudicial impact that occurs when a felon/firearm charge is combined with a murder charge for trial on two occasions. Sullinger v. State, 310 Ark. 690, 840 S.W.2d 797 (1992); Ferrell v. State, 305 Ark. 511, 810 S.W.2d 297 (1991). In each instance, we affirmed the conviction and judgment, though we held that the trial court had erred in failing to sever the charges for trial. We did so, based on what amounted to a harmless error analysis. Though there was error, we held that the error was not prejudicial to the defendant because of the existence of one or more overriding factors, including: (1) the overwhelming evidence of guilt; (2) cross- examination of the defendant on the prior conviction; and (3) a limiting instruction to the jury.
In both Sullinger and Ferrell, we scrutinized the circumstances of the case in light of these factors and concluded that the joinder error was harmless, primarily due to overwhelming evidence of guilt and the fact that the defendant would have taken the stand in any event and been cross-examined about his felony conviction.
The state now urges us either to affirm Sutton’s conviction using the Sullinger and Ferrell analysis or on the basis of McEwen v. State, 302 Ark. 454, 790 S.W.2d 432 (1990). In McEwen, a felon/firearm charge and aggravated robbery charge were tried together and convictions for both resulted. Prejudice was argued on appeal due to the joinder, and we rejected the argument on the basis that severance was a matter discretionary with the trial judge. We noted that the judge’s discretion was not abused by the ruling in McEwen because it was premised on the fact that the same gun was used in both offenses and that severance would have meant two trials and a duplicative effort. We also observed in that case that the prior felony conviction could have been brought out on cross-examination and, thus, no prejudice resulted from the joinder.
We first consider in the case at hand whether Sutton’s motion to sever the murder and felon/firearm charges and his motion in limine to exclude the prior felony conviction preserved the issue for appeal without a further objection made at trial. We have held that raising an objection by pretrial motion without a corollary objection at trial is sufficient to preserve the issue for appeal, but failure to object at trial precludes the party from relying on anything disclosed at trial which was not brought out at the pretrial hearing. Rowe v. State, 271 Ark. 20, 607 S.W.2d 657 (1980), cert. denied 450 U.S. 1043 (1981) (pre-trial motion to suppress lineup identification which was denied preserved the issue without additional objection at trial); see also Ward v. State, 272 Ark. 99, 612 S.W.2d 118 (1981) (when a motion in limine is overruled, no further objection is needed). Here, Sutton moved to sever the charges and moved in limine on the prior conviction. Under these circumstances, an additional objection to the felony conviction at trial was not necessary.
In examining the approach taken to the joinder issue in other jurisdictions, we observe a wide range of solutions. Some jurisdictions have balanced judicial efficiency against prejudice to the defendant and denial of a fair trial under the Due Process Clause and held in favor of severance. See, e.g., State v. Cook, 673 S.W.2d 469 (Mo. App. 1984). The District of Columbia Court of Appeals, while noting that joinder may not always be an abuse of discretion, has held that a high level of care is necessary to avoid prejudice when a felon/firearm charge is joined for trial. U.S. v. Dockery, 955 F.2d 50 (D.C. Cir. 1992); but see United States v. Daniels, 770 F.2d 1111 (D.C. Cir. 1985) (district court did not abuse its discretion in denying severance). The D.C. Circuit in Dockery stated:
The primary concern is that prior crimes evidence “weigh[s] too much with the jury and . . .' overpersuade [s] them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge.”
955 F.2d at 53; quoting Michelson v. United States, 335 U.S. 469, 476 (1948). The D.C. Circuit concluded that the defendant was prejudiced and looked to factors such as the government’s refusal to admit the prior conviction by stipulation rather than proof and the absence of a cautionary instruction on inferences to be drawn from the conviction as reasons for reversal.
The Ninth Circuit Court of Appeals had held in a case where evidence was sparse on the primary charge of murder and a cautionary instruction on the prior felony was not given until the end of a three-day trial that the defendant was manifestly prejudiced. United States v. Lewis, 787 F.2d 1318 (9th Cir. 1986). Though the Ninth Circuit did not dwell on this point, the defendant also did not take the stand; thus, the prior felony would not have been otherwise admissible.
Similarly, the Kentucky Supreme Court has held that failure of the trial court to sever a felon/firearm charge for trial was prejudicial error. Hubbard v. Commonwealth, 633 S.W.2d 67 (Ky. 1982). In a dissenting opinion, it was noted that the defendant had not testified at trial. He was, therefore, not subject to cross-examination on his felony record.
Other state appellate courts have also held that prejudice results from joinder and introduction of a felony record at trial where otherwise the felony conviction would have been inadmissible. See, e.g., Elerson v. State, 732 P.2d 192 (Alaska App. 1987). In addition, the Georgia Court of Appeals, though it did not reach the merits due to the appellant’s assertion of a new ground attacking joinder on appeal, observed that a felon/firearm offense is not an included offense of armed robbery and may be an existing offense before and after the commission of armed robbery. Coleman v. State, 163 Ga. App. 173, 293 S.E.2d 395 (1982).
It is clear from this authority that foreign jurisdictions have engaged in the same analysis as we have in assessing prejudicial error in these cases. Turning to the merits in the case before us, the evidence for conviction is much weaker than the evidence presented by the state in either Sullinger or Ferrell. The eyewitness testimony is from a witness, Kathy Riggsbee, who was under suspicion as an accomplice and who was charged with hindering apprehension. Moreover, the prior conviction sustaining the felon/firearm charge — grand larceny — was more than ten years old and could not have been used for impeachment purposes under Ark. R. Evid. 609(b).
Where a felon/firearm charge is tried with a second felony, the jury is confronted at the opening of the trial with the stark and highly significant fact that the defendant is a convicted felon. The felon/firearm charge generally has no relevance to the second charge being tried and serves only to sully the defendant in the minds of the jurors. In the present case, the previous conviction occurred in 1974 and was for grand larceny. It had no probative value in Sutton’s trial for the murder of Lyle Boliou. At the end of the trial, the jury was instructed that a prior conviction could only be used to assess credibility and not as evidence against the accused. However, we are of the opinion that this general instruction did little, if anything, to offset the effect of the criminal record.
The state argues that Sutton, in fact, did commit the felon/ firearm offense at the same time he purportedly shot Boliou on August 13, 1990. In other words, he was a convicted felon illegally in possession of a firearm at that moment. Hence, so the argument continues, the two offenses were part of a single scheme or plan under Ark. R. Crim. P. 22.2(a) at the time the trigger was pulled. We are mindful that at least one other jurisdiction had adopted this point of view. See State v. Illig, 237 Neb. 598, 467 N.W.2d 375 (1992). However, we are not convinced by this argument for two reasons. First, the prejudice caused by evidence of a prior conviction in the state’s case is great. Secondly, we do not believe that an ongoing violation of a felon’s possession of a firearm should be telescoped into one moment in time in order to enhance the prosecutor’s case on a second, more serious charge.
We are disinclined, as are other jurisdictions, to conclude that joinder of a felon/firearm charge with a second felony charge constitutes prejudice by that fact alone in all instances. See, e.g., United States v. Daniels, supra. However, we agree with the Ninth Circuit Court of Appeals “that the danger that the jury’s perception of the defendant will be adversely affected is so strong as to create a presumption favoring severance.” 787 F.2d at 1322.
Further, we do not believe that the circumstances in this case are sufficient to overcome that presumption of prejudice. The evidence of guilt was weak, and the prior felony was inadmissible for purposes of impeachment. In addition, the error was not cured by the instruction on the prior conviction and credibility at the end of the trial. Sutton, accordingly, was prejudiced by the joinder and is entitled to a new trial.
We, therefore, hold that the trial of the felon/firearm charge with the murder charge was prejudicial error and that the circuit court abused its discretion in denying the motion to sever. Because McEwen v. State, supra, is inconsistent with our holding in this case, we overrule it.
Sutton makes numerous other assertions of error, and we address those that may arise on retrial.
II. IMPEACHMENT
Kathy Riggsbee testified that Boliou was killed during the day. Lieutenant Sam Poe of the Greene County Sheriff’s Department testified that he was never able to ascertain the Boliou was seen alive at 9:00 p.m. on the day of the murder. Sutton claims that had he been able to pursue cross-examination of Lieutenant Poe about his conversation with a waitress at the Red Onion Bar, Poe would have been forced to admit that the woman told him she had seen Boliou at the bar at about 9:00 p.m. on that day. He argues that this cross-examination was necessary to impeach Lieutenant Poe’s earlier testimony on that point.
Sutton, however, was attempting to impeach Lieutenant Poe with another officer’s field notes on what was a collateral matter which, as the trial court correctly ruled, was improper. A witness cannot be impeached by extrinsic evidence on a collateral matter. See Teas v. State, 23 Ark. App. 154, 744 S.W.2d 739 (1988). Sutton could easily have called the waitress as a witness on this point and, in fact, did so. There was no prejudice to Sutton. The trial court did not abuse its discretion in its ruling.
III. OFFER OF IMMUNITY
Sutton next argues that an agreement was made with law enforcement officers not to charge him with a felon/firearm offense if he gave a statement. Because he gave the statement, the failure to honor that agreement, according to Sutton, should void the felon/firearm charge. In support of his argument, he cites us to Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982), where we held that a confession induced by promises of immunity may be involuntary.
Sutton, however, has pursued the wrong remedy, as the trial court appropriately noted in denying the motion. His motion filed on August 26, 1991, the day of the trial, prayed that the felon/firearm charge be dropped rather than that the statement be ruled inadmissible. His remedy for an involuntary confession, however, was to have the statement suppressed. Cf. Davis v. State, supra. The trial court further observed that only prosecutors, not law enforcement officers, can drop charges, and that Sutton’s attorney knew that. The evidence that Sutton possessed the pistol was ample apart from his statement. We cannot say that the trial court erred in its ruling on this point. See Patterson v. State, 306 Ark. 385, 815 S.W.2d 377 (1991).
IV. MISCELLANEOUS
There was no error in three other points raised by Sutton. The trial court properly refused to allow the testimony of the waitress of the Red Onion Bar regarding the name of the man who was with Boliou at the bar on either August 13 or August 14, 1990, between 6:30 and 7:00 p.m. The report of that name was hearsay. Moreover, by the description of the man from the waitress, it was clear to the jury that the man was not Sutton. Hence, there was no prejudice to the appellant.
At trial, Ruth Boliou, the widow of the victim, was called by Sutton as a witness, and she invoked the Fifth Amendment against self-incrimination. Sutton advances the theory that Mrs. Boliou should have had an attorney appointed for her which would have enabled him to question her about her husband’s death. The theory has no merit. Mrs. Boliou was under suspicion by the authorities for the murder of her husband, according to her testimony. She was perfectly within her rights to seek Fifth Amendment protection. Sutton, in addition, offers no authority for why counsel must be appointed for Mrs. Boliou under these circumstances. See Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).
There is, finally, Sutton’s argument that the trial court should have admitted into evidence a letter by Riggsbee’s attorney to the prosecutor which, Sutton contends, was in the nature of a plea bargain for her hindering-apprehension charge. Alternatively, Sutton argues that he should have been allowed to use the letter to impeach Riggsbee’s testimony that she had no deal with the state.
Sutton correctly maintains that Ark. R. Evid. 410 provides that evidence of an offer to plead guilty is not admissible against the person making the offer and that here the offer of proof is not made against that person. Nevertheless, the letter was clearly hearsay and was proffered to prove the truth of the assertions made in the letter. Refusing its admission into evidence as part of Sutton’s case was appropriate.
Whether the letter should have been allowed for impeachment purposes against Riggsbee is a different matter. Kathy Riggsbee denied that she had entered into an agreement with the state. Sutton’s counsel then tried to impeach her with her attorney’s letter. The letter read in part: “If she cooperates with authorities, I would think a nolo plea and a probationary sentence would be generous to the prosecution.” Had the letter indicated that a plea bargain agreement had actually been struck, it might well have been admissible for impeachment purposes. See Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983). Here, though, the letter from Riggsbee’s counsel suggests little more than an effort to explore the potential for a negotiated plea. The trial court correctly ruled that the letter did not rise to the level of an agreement. We have upheld a trial court’s ruling that when a plea agreement has been withdrawn, a witness may not be questioned about it. See Smith v. State, 310 Ark. 247, 837 S.W.2d 279 (1992). Similarly, in this case the letter did not evidence a consummated agreement or, indeed, a firm offer. We can observe no prejudice to Sutton emanating from the trial court’s ruling on this point.
Reversed and remanded.
Hays and Glaze, JJ., dissent. | [
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Steele Hays, Justice.
Appellant was charged in the Fort Smith District, Sebastian County, with attempted rape and convicted of third degree battery. The jury imposed a punishment of one year in jail and a fine of $1,000. Two errors are charged: the trial court should have granted a motion to quash the jury panel and should have declared a mistrial because of a remark by the prosecutor during voir dire examination. The arguments are without merit.
The motion to quash mentions no constitutional issues, but alleges simply that in the opinion of counseka jury drawn from the entire county would be “fairer” than a jury drawn only from Fort Smith.
Article 3, § 5, of the Arkansas Constitution provides Sebastian County may have two districts and two county seats. Enabling legislation established the districts as Fort Smith and Greenwood, the dividing line being the city limits of Fort Smith. The boundaries of the districts change as the City of Fort Smith changes through annexation. Each district maintains its own jury panel with persons residing in the district selected from voter registration rolls, separately maintained.
On appeal, appellant has broadened considerably the arguments in support of the motion to quash: he contends that Amendment 55 of the Arkansas Constitution effectively repeals Article 13, § 5; that Article 2, § 10 entitles him to a county-wide jury panel; and that Amendment 7, § 1 invalidates legislation which enables the district boundaries to change periodically as lands are annexed to the City of Fort Smith. None of these arguments were posed in the motion to quash and, thus, were not addresssed to the trial court in the first instance. They cannot be raised for the first time on appeal. Federal Express Corp., et al v. Skelton, 265 Ark. 187, 578 S.W. 2d 1 (1979); Williams v. State, 257 Ark. 8, 513 S.W. 2d 793 (1974); Ford v. State, 253 Ark. 5, 484 S.W. 2d 90 (1972).
The argument which is raised by the motion to quash, that appellant is entitled to be tried by a jury drawn entirely from Sebastian County, rather than from Fort Smith alone, has been considered a number of times and put to rest. Walker v. State, 35 Ark. 386 (1880); Potter v. State, 42 Ark. 29 (1883); Collins v. State, 200 Ark. 1027, 143 S.W. 2d 1 (1940); Terry v. State, 149 Ark. 462, 233 S.W. 673 (1921); Warren v. State, 241 Ark. 264, 407 S.W. 2d 724 (1966).
Appellant’s second point is that a mistrial should have been granted because during voir dire the prosecuting attorney said to a prospective juror “the defendant might or might not testify.” Citing Adams v. State, 263 Ark. 536, 566 S.W. 2d 387 (1978) and Clark v. State, 256 Ark. 658, 509 S.W. 2d 812 (1974), the appellant argues that the remark impinged on his Fifth Amendment right not to testify. However, counsel for the state denied the remark attributed to him, stating that he said only that there “would be one witness for the state.” This, apparently, is how the trial judge heard the remark. Since the remark itself is not in the record, only the dispute between counsel, we assume the trial judge was correct and that he properly denied the motion for mistrial, the granting of which rests within the sound discretion of the trial court. Fauna v. State, 265 Ark. 934, 582 S.W. 2d 18 (1979); Finch v. State, 262 Ark. 313, 556 S.W. 2d 434 (1977).
Affirmed. | [
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Per Curiam.
On May 1, 1992, a hearing was held on the motion of the appellant, Westark Christian Action Council (Westark), that a special prosecutor be appointed to investigate a charge that Dr. Joycelyn Elders, a state employee, had been guilty of improper political practices in violation of Ark. Code Ann. § 7-l-103(2)(B) (Supp. 1991). The motion was denied on May 26, 1992. A notice of appeal was filed, and the record was filed with this Court September 11, 1992.
On January 4, 1993, Westark filed its motion asking for expedited hearing of its appeal because, if Dr. Elders is to be charged, the charge must be filed before January 18,1993, or the statute of limitations will have run. The motion brought the case for the first time to the attention of this Court.
In view of the fact that this Court could not possibly set a briefing schedule, do the necessary research, conduct the necessary conferences, and reach a decision between now and January 18, 1993, the motion is denied. | [
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Marian F. Penix, Judge.
In March, 1978, the appellees E.W. and Mary Garrison, purchased a trailer park consisting of 4.525 acres from Marie White’s father’s estate for $17,-200.00. They improved the property in the amount of $5,-000.00. Marie White, appellant, is mentally retarded. As a result of a wrongful death action she inherited $21,701.96 from her father’s estate. During the pendency of the tort action and the probate of her father’s estate, a guardian was appointed for her. The guardianship was dissolved shortly before she received her inheritance settlement check on July 19, 1978. The $21,701.96 check was deposited into an escrow account of her attorney, Jim Haddock. On July 19, 1978 $20,-000.00 was paid to the Garrisons for the trailer park. The balance of $1,701.96 was retained by Attorney Haddock as a fee. In addition to the $20,000 paid the Garrisons, Marie Whie also executed a $6,500.00 installment note for the balance of the total purchase price of $26,500.00. In August 1978 Marie White executed a General Power of Attorney to her mother Frances White Peoples. On October 16, 1978 Marie White reconveyed to the Garrisons the entire trailer park, less a small lot (100" x 60") for $3,084.00 (in the form of a used trailer). The Garrisons retained an exclusive option to repurchase the small lot for $1,500. The Garrisons exercised this option for $700.00. In November 1978 Marie White, through her mother and next friend, Frances White Peoples brought an action to set aside and cancel the October 16 conveyance from Marie White to the Garrisons. The Court cancelled and set aside the conveyance. However, the Court granted judgment against Marie White for $3,784.00, together with any accumulated payments until the date of the decree on the $6,500.00 note. Further, the Court impressed an equitable lien upon the property in the amount of $10,-284.00 plus accumulated interest. The $10,284.00 represents $3,784.00 paid by the Garrisons for reacquiring the property together with the $6,500.00 note executed by Marie White on July 19, 1980. Marie White appeals from the portion of the Decree awarding judgment against Marie White and impressing an equitable lien upon the property.
Marie White contends the judgment against her was in error because no guardian was appointed to appear and defend on her behalf. She also alleges error because the Garrisons did not file a counter-claim and also because the Garrisons are guilty of reprehensible conduct. Marie White contends she had not had her “day in Court” with respect to the promissory note executed by her'July 19. In its findings of fact the Court stated:
. . . this Court’s inherent equitable power to right what is a patent wrong should be exercised in this case based upon the following:
1. The video tape deposition of Marie together with the testimony of Dr. Gilbert reveals that she is mentally retarded to a significant degree and in no way understands the nature of the various trailer park transactions — or this lawsuit — for that matter; and,
2. Marie in her own trusted Garrison based upon her association through the years, (testimony of Garrison himself); and,
3. The Garrisons, both of them, after receiving $26,500 less than three months thereafter returned to Marie only $3,084.00 plus satisfaction of the $6,500.00 note. The value of the trailer lot is — for purposes of the relief herein granted — fixed at $700.00. A total of $10,284.00. Thus, a profit to Garrisons of $16,216.00. Garrison, though he knew Marie was “slow”, said he felt he should make a profit.
4. On or about October 16, 1978, Marie and her mother were without a place to live. Garrison took unmistakable advantage of their predicament.
5. The Court has totally disregarded the disclaimer of Marie because Marie White was — at all times pertinent hereto — mentally deficient to the extent that she could not conduct her own affairs and was unaware of the nature, extent or value of her property and by what means she was divested of it. In a nutshell Marie, a mentally retarded person, had $21,750.00 in July of 1978 and in October, 1978, had nothing except the $100.00 she subsequently received. Garrison, on the other hand received a profit of $16,216.00 which clearly was Marie’s money.
The Court went on to state its perception of the law as expressed in Storthz v. Williams, 51 Ark. 460 (1908):
Where the inadequacy (of price) does not stand alone, but is accompanied by other inequitable incidents, the relief is more readily granted . . . courts have established clearly marked limitations upon their remedial functions . . . The fact that a conveyance or other transaction was made without professional advice . . . was improvident, even coupled with an inadequacy of price, is not itself a sufficient ground for relief, provided the parties were both able to judge and act independently, and did act upon equal terms, and fully understood the nature of the transaction, and there was no undue influence or circumstance of oppression. When the accompanying incidents are inequitable, and show bad faith, such as . . . undue advantage . . . ignorance, weakness of mind . . . incapacity, pecuniary necessities, and the like . . . combined with inadequacy of price, may . . . induce a court to grant relief.
The Court further stated there is a heavy burden of proof on the one benefitting from the transaction to show good faith. The Court found the burden has not been met by Garrison in regard to the October 16 transaction. The Court ordered the deed cancelled.
We believe the Court correctly ordered the cancellation of the October deed. We cannot, however, agree with those parts of the decree which render a personal judgment against Marie in the amount of $3,784.00 and impose an equitable lien on the trailer park in the amount of $6,500.00. The Court made a specific finding of fact as to Marie’s incompetency and her inability to comprehend any of the trailer park transactions. Ark. Stat. Ann. § 27-830 states that no judgment may be rendered against an incompetent unless a guardian has been appointed.
The defense of an action against a person judicially found to be of unsound mind must be by his committee [guardian] or a guardian appointed by the court to defend for him, where no committee [guardian] appears, or where the court directs a defense by a guardian. No judgment can be rendered against him until after a defense by his committee[guardian\ or by a guardian appointed for that purpose. . . . (Emphasis supplied).
Because no guardian was appointed, we find the imposition of the judgment and lien against Marie to be erroneous as a matter of law and therefore reverse. The cancellation of the deeds is affirmed but all other parts of the decree are reversed.
Affirmed in part; reversed in part. | [
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Frank Holt, Justice.
A series of ordinances were enacted by the Garland County Quorum Court pursuant to Act 742 of 1977, the Arkansas County Government Code, as authorized by Amendment 55 of our Constitution. Conflicts arose as to the extent of the authority of the quorum court, by these ordinances, to control official duties of the county officers and their personnel. This culminated in this lawsuit in which the appellees, six Garland County elected officials, filed a complaint against the appellants, the county judge and the quorum court, challenging the validity of various ordinances. The trial court found that several of the questioned ordinances or sections were invalid and that a lesser number were valid. The court also found that the Board of Election Commissioners had properly incurred certain legal expense and judgment was awarded against the county for the fees sought. The court also found that the prosecuting attorney was required to represent the appellants. By direct and cross-appeal, the parties question, inter alia, the correctness of the court’s validating and invalidating the various ordinances.
At the outset, we observe that the only issues, which are based on a factual dispute, consist of the court’s finding that the county was obligated to pay an attorney fee incurred by the Election Commissioners, and the court’s denial of the prosecuting attorney’s motion to be relieved as counsel in this litigation between these county officials. On the other issues, the validity of the ordinances, it was stipulated there were no controverted facts and that the only issues involved were questions of law. The various ordinances and laws were merely placed before the trial court with the request that he resolve their validity. On appeal, for example, we are urged to furnish a definition for “employees and deputies”, which wold remove many of the existing difficulties and, further, it is necessary to have a definitive statement as to the extent of the quorum court’s authority with respect to the employees and deputies of the various elected officials.
We are not unmindful of the intense desire and need, as urged in oral argument, for a resolution of these issues. In effect, however, we are asked to decide an academic question on issues where no pertinent facts were presented to the trial court. Since we do not issue advisory opinions, we must decline to do so here. McDonald v. Bowen, 250 Ark. 1049, 468 S.W. 2d 761 (1971); Hogan v. Bright, 214 Ark. 691, 218 S.W. 2d 80 (1949); and 16 C.J.S. Constitutional Law § 150. The requested opinion, being only in the nature of advice, does not have the force, effect and binding nature of a judicial decision which resolves an actual specific controversy between parties.
We do find merit, however, in the prosecuting attorney’s contention that he should have been relieved as counsel in this controversy between these county officials. The prosecutor urged the court that he should be relieved of his duties on the grounds of conflict of interest. Appellants responded there were no objections to being represented by the prosecuting attorney. It appeared there was no conflict as to confidential matters. The prosecuting attorney acknowledges that Act 742 of 1977 (Ark. Star. Ann. § 17-4014 (2) [Repl. 1980]) requires him to serve as legal counsel to the quorum court. However, he argues here that he is also called upon, in his capacity from day to day, to advise the various county officials. Also, during this litigation, he might be required to communicate directly with the adversary parties, the appellee county officials. Further, disciplinary Rules 5-101, 5-105, and 5-107, Code of Professional Responsibility, and Canon 9 of the Code require that he be relieved as the attorney in this matter to avoid the appearance of impropriety. Even though there was full disclosure of possible adverse interests and appellants had no objection to his representing them, we are of the view and hold that a prosecuting attorney is placed in an untenable position whenever, as here, he is required to represent county officials who have competing interests with respect to other county officials. It could place him in the position, as argued, to have to choose between them or accept the one who first requests his services.
However, we agree with the trial court in awarding $560 in attorney’s fees incurred by the County Board of Election Commissioners. It appears that voting machines were stored in a county owned building and moisture was causing them to rust and deteriorate. An attorney was employed by the commission to force the correction of the problem. The county judge denied the claim and the commission appealed to the trial court, which allowed the claim. Appellants argue that the commission was under a duty to inquire about the status of the proposed repairs by the county judge before filing the lawsuit, and, furthermore, county officials may not indiscriminately hire an attorney and waste county funds. The commission is responsible for the care and custody of election machines. Ark. Stat. Ann. § 3-1207 (Repl. 1976). It is undisputed that the moisture problem existed and needed cor- reefing. The amount of the award is not questioned. Based upon the facts in the record, we cannot say the court’s ruling on this controverted claim is clearly against the preponderance of the evidence.
Affirmed in part, reversed in part and remanded.
Purtle, J., concurs. | [
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Donald L. Corbin, Justice.
This is an appeal by two surety companies from a judgment requiring both to make payments under statutory public works performance bonds pursuant to Ark. Code Ann. § 22-9-401 (1987). Appellants assert eight points of error on direct appeal while appellee asserts two points of error on cross-appeal. Our consideration of these alleged errors requires construction of numerous statutes; thus, our jurisdiction is pursuant to Ark. Sup. Ct. R. 29 (1) (c). Because we find no merit to appellants’ argument that appellee should not have been allowed to recover on the bonds as a matter of law, we reverse the judgment.
Vester Cornelious Construction Company contracted with the Arkansas Highway Commission to build several public works construction projects. The relevant public works projects are referred to throughout this opinion as the Wynne job, the Hope job, and the Hick’s Station job. Separate appellant, Integon Indemnity Corporation, issued the statutory performance bonds on both the Wynne and Hick’s Station jobs. Both of Integon’s bonds listed Cornelious as the principal. Separate appellant, Amwest Surety Insurance Company, issued the bond for the Hope job which also listed Cornelious as principal.
As Cornelious was constructing the various public works jobs, the company experienced financial difficulties. Vester Cornelious requested financial assistance from appellees, Tony Bull and Tony Bull Chevrolet Buick Company. Eventually, Cornelious defaulted on the public works contracts and the appellant surety companies were required to arrange for comple tion of the projects. Bull filed a complaint against both Integon and Amwest claiming he supplied labor and materials for completion of the public works jobs and was therefore entitled to payment under the bonds. Bull also sought a declaration of his prior right to three certificates of deposit owned by Bull and Cornelious jointly and assigned by Cornelious to the sureties as security for the bonds. The case was tried before a jury which rendered separate verdicts for Bull against Integon and Amwest for $75,118.79 and $55,982.13 respectively. The jury also found for the sureties regarding the ownership of the certificates of deposit. Integon and Amwest have appealed from the judgment entering the respective verdicts. Bull has cross-appealed on the issue of the certificates of deposit.
On appeal, the first of Integon’s eight arguments for reversal is that the trial court erred in refusing to hold, as a matter of law, that Bull did not have a claim against the bond because he did not supply labor or materials to the public works jobs. Amwest makes essentially the same argument as its first point of error and then joins in three of Integon’s remaining arguments. As the first arguments are so similar, we consider them both together. Because we reverse and dismiss on that common point, we need not consider any of appellants’ remaining arguments. We must however, address Bull’s two points argued on cross-appeal.
The argument for reversal is that Bull was not entitled to recover under the bonds because he merely advanced funds to Cornelious or directly to Cornelious’ laborers and suppliers rather than actually supplying the labor and materials for the bonded projects as required by section 22-9-401. Integon and Amwest claim that by advancing funds or even paying material-men and laborers directly, as a matter of law, Bull occupied the status of a lender or creditor of Cornelious rather than a supplier or materialman, and therefore could not recover under the statutory bonds. Bull first responds to this claim by asserting that the argument is a challenge to the sufficiency of the evidence and our review is therefore precluded because the abstract does not include the motions for directed verdict. Bull counters the merits of the argument by claiming Bull’s testimony provided substantial evidence to support the jury’s verdict.
As Bull correctly points out, the abstract does not contain the motions for directed verdict. Generally, the failure to comply with Ark. Sup. Ct. R. 9 by not abstracting a motion for directed verdict precludes appellate review of that issue. Cozart v. Lewis, 299 Ark. 500, 774 S.W.2d 127 (1989). However, we have found that affirmance for non-compliance with Rule 9 is not necessarily warranted when the needed information can be gained from some other part of the abstract. Ransopher v. Chapman, 302 Ark. 480, 791 S.W.2d 686 (1990). In this case, the abstract does include both appellants’ motions for judgments notwithstanding the verdicts. Both motions state that the necessary directed verdict motions were made. Thus, consistent with Ransopher, the abstract is not deficient in its failure to contain the motions for directed verdict and we need not affirm for failure to comply with Rule 9.
A trial court may enter judgment notwithstanding the verdict only if there is no substantial evidence to support the jury verdict, and the moving party is entitled to judgment as a matter of law. Dedman v. Porch, 293 Ark. 571, 739 S.W.2d 685 (1987). In reviewing the denial of a motion for directed verdict, we give the proof its strongest probative force viewed in the light most favorable to the party against whom the motion was sought, and affirm the trial court’s denial if there is any substantial evidence to support the verdict. Grendell v. Kiehl, 291 Ark. 228, 723 S.W.2d 830 (1987).
The evidence, as viewed most favorably to Bull, reveals the following. Bull is in the automobile business and was not involved in the construction business prior to his dealings with Cornelious. Bull loaned money to Cornelious on two occasions in exchange for two promissory notes of $1,500.00 and $5,000.00, the latter of which was not repaid. Here, we add parenthetically that Bull does not seek recovery of the two loans totaling $6,500.00 — he testified that they were indeed loans and therefore he knew he could not recover them under the bonds. Bull executed a written agreement with Cornelious to provide the “financial backing” for existing jobs and future jobs in return for one half of the profits. The agreement also stated that both parties agreed Bull would “handle and disburse all proceeds from each job.” Bull testified that he agreed to continue furnishing the financial backing so he could get his $5,000.00 back.
Bull testified that he was never Cornelious’ partner, rather he was a supplier of labor and materials to Cornelious’ various construction projects. Bull stated that he borrowed close to $200,000.00 from the Bank of Augusta to pay for labor and supplies; his purpose was to see where the money was going, to make sure the supplies were going on the jobs, and not to advance funds to finish the jobs. Numerous exhibits were introduced by all parties showing either the checks or summaries of checks drawn on the Bank of Augusta by Bull and made payable not just to Cornelious but also directly to suppliers of labor and materials on all three public works jobs. Bull testified that he paid the bills associated with the jobs and did not make a loan; that he paid the suppliers, but did not advance funds.
Bull argues that the foregoing evidence is substantial evidence that he was a supplier of labor and materials and therefore held a valid claim against Amwest and Integon under the bonds they issued. We disagree with Bull’s contention that there is substantial evidence to support the jury’s verdict. To the contrary, we agree with Amwest and Integon that they were entitled to judgment as a matter of law.
The bonds at issue in this appeal are performance bonds for public works projects. Recovery under these bonds is controlled by section 22-9-401 (a) which states that:
All surety bonds required by the State of Arkansas ... for the repair, alteration, construction, or improvement of any public works . . . shall be liable on all claims for labor and materials entering into the construction, or necessary or incident to or used in the course of construction, of the public improvements.
The question presented is whether, by writing checks directly to suppliers of material and labor, Bull has a claim for labor and materials that section 22-9-401 requires the sureties to pay.
We have previously decided this precise issue in Ayres & Graves v. Ellis, 185 Ark. 818, 49 S.W.2d 1056 (1932). Although the Ellis decision applied an earlier version of section 22-9-401, both statutes are similar in all relevant respects. In Ellis, W.C. Ellis d/b/a as the W.C. Ellis Lumber Company contracted with A.O. Freeman to furnish Freeman money and material to carry out Freeman’s sub-contract for concrete structural work on a public works project. When Freeman completed the work on his sub-contract, he had a balance due Ellis. Ellis sued to recover the balance under the principal contractor’s bond. The evidence presented in the Ellis case revealed that Ellis undertook to finance Freeman’s contract, to order and deliver all material required, to keep a payroll record, and to render monthly statements of Freeman’s account to which Ellis added a charge of 8%. The statements included, among other items furnished to Freeman, cash advances. Ellis’ right to recover the materials furnished was not questioned; however, his right to recover from the surety the money he paid directly to Freeman’s laborers was questioned. In Ellis, we stated that the case of Norton v. Maryland Casualty Co., 182 Ark. 609, 32 S.W.2d 172 (1930), was controlling. Norton held that one who advances money to a public works contractor is not a sub-contractor but a creditor and therefore does not have a claim against the surety. In Ellis, we stated:
The fact that Ellis personally paid the laborers in the instant case does not alter the legal principles there announced [in Norton]. Such payment was nothing more than an advance to Freeman, and created only the relation of debtor and creditor between Ellis and Freeman, and did not constitute Ellis a subcontractor, as appellee contends, nor did it make him a person holding such a claim as the statute requires the surety to pay.
Ellis, 185 Ark. at 822-23, 49 S.W.2d at 1058. Ultimately, Ellis held that Ellis had a claim against the surety for materials furnished Freeman, but that the only claim Ellis had for the payments he made to Freeman’s laborers was against Freeman himself, not the surety.
The Ellis case controls the present case. The two cases present almost identical facts. We see no distinction in the fact that Ellis involved direct payments only to suppliers of labor, while the present case involves payments to both suppliers of labor and suppliers of materials. The evidence, when viewed most favorably to Bull as is required, can lead reasonable minds to only one conclusion — that, Bull directly paid for labor and materials that were part of a public works project. Consistent with Ellis and Norton, we hold the fact that Bull paid Cornelious’ laborers and suppliers directly, makes Bull Cornelious’ creditor, not a supplier of labor and materials with a claim against the surety. As a matter of law, Amwest and Integon were entitled to judgment and the trial court erred in denying the motions for directed verdicts and judgments notwithstanding the verdicts. The jury verdicts in favor of Bull against Integon and Amwest are reversed and Bull’s claims are dismissed.
The first issue on Bull’s cross-appeal is a challenge to four jury instructions given by the trial court. Bull argues the instructions are a “hodge-podge of incorrect law, inapplicable to the facts in the case and constitute prejudicial error.”
First, Bull challenges Instruction #32, which states as follows:
JURY INSTRUCTION NO. 32
Integon asserts that it is entitled to proceeds of the Bank of Augusta certificate of deposit number 17923 in the amount of $14,257.00 by virtue of having a perfected assignment in such certificate of deposit. To establish that it has a perfect assignment, Integon has the burden of establishing each of the following essential propositions:
1. The certificate of deposit is in the possession of Integon pursuant to agreement.
2. Integon has given value for the assignment.
3. Cornelious had rights in the certificate of deposit assigned to Integon.
Whether Integon has proved each of these elements by a preponderance of the evidence is for you to determine.
Bull claims this instruction was misleading to the jury because it suggested that proving an assignment would entitle Integon to the proceeds of the certificate of deposit. Bull claims this was error because the proper issue before the jury was who was entitled to the proceeds, not whether Integon was entitled to the proceeds by virtue of its assignment. Bull also argues the instruction was “inherently erroneous, redundant and covered by verdict form.” However, Bull does not allege which of the sixteen verdict forms addressed the substance of the challenged instruction.
Integon asserts that Instruction #32 is a correct statement of the law pursuant to Ark. Code Ann. § 4-9-305 (Repl. 1991), and General Electric Co. v. M & C Mfg. Co., 283 Ark. 110, 671 S.W.2d 189 (1984). Those two authorities stand for the proposition that a security interest in a certificate of deposit is perfected by possession. In addition, Integon relies on the Official Commentary to Ark. Code Ann. §4-3-116 (Repl. 1991), which states that an instrument payable to one party “and/or” another party is payable in the alternative to either or to both of the stated parties.
We note that, by way of Instruction #23, the jury was instructed that Bull, Integon and Amwest claim superior rights in the respective certificates of deposit and that entitlement to the proceeds of the respective certificates of deposit was an issue the jury would have to decide. We cannot disagree with the authorities cited by Integon in support of Instruction #32. Bull has cited us to no authority that indicates the instruction was an incorrect statement of applicable law. Instruction #32 was not misleading to the jury in light of the fact that Instruction #23 was given. The trial court did not err in giving Instruction #32.
Second, Bull challenges Instruction #33. He claims Instruction #33 is not based on any statute and is in conflict with Instruction #24. The two instructions state as follows:
JURY INSTRUCTION NO. 24 [Official Commentary to] (ACA § 4-3-116)
You must determine whether or not the certificates of deposits are payable to Cornelious Construction Company and Tony Bull jointly or in the alternative.
If an instrument is found to be payable jointly, all of the payees must participate in any negotiation, discharge or enforcement of the instrument. But if the instrument is found to be payable in the alternative, any one of the payees may negotiate, enforce or discharge the instrument, provided they have possession of the certificate of deposit.
In deciding whether an agreement is payable in the alternative or jointly, you must look to the intent of the parties in drawing the instrument.
You are instructed that if it is not clear that the parties intended to make the instrument payable in the alternative, then you should find it to be payable jointly.
JURY INSTRUCTION NO. 33
A certificate of deposit payable to one party “and/or” another party, is payable in the alternative. An alternative payee in possession can assign or transfer a certificate of deposit by his signature alone.
We disagree with Bull’s contention that Instructions #24 and #33 are in conflict. To the contrary, the two instructions are in harmony. In addition, while the two instructions overlap somewhat, they are both accurate statements of applicable law. General Elec. Co., 283 Ark. 110, 671 S.W.2d 189; section 4-9-305; Official Commentary to section 4-3-116. Moreover, since the jury was instructed that the priority of ownership of the certificates of deposit was an issue for their determination, the trial court did not err in giving Instruction #33.
Third, Bull challenges Instruction #34, which states that:
JURY INSTRUCTION NO. 34
By the terms of its agreement, the assigned funds may be used to indemnify Integon for all losses, costs and expense associated with bonds written on behalf of Cornelious Construction Company. Integon may indemnify itself for the following losses, costs and expenses from the assigned funds:
1. Amounts paid to subcontractors, suppliers and laborers of Cornelious Construction Company which you find were reasonable, proper and made in good faith by Integon under the terms of its bond.
2. Amounts paid by Integon to complete or monitor the completion of the various construction projects in which you find were reasonable, proper and made in good faith under the terms of its bond.
3. Amounts paid by Integon to attorneys in connection with investigating, defending and paying claims against its bonds which you find were reasonable, proper and made in good faith.
Whether any of these types of losses have been proved by the evidence is for you to determine.
Bull claims that the instruction is erroneous because it permits Integon to indemnify itself from the assigned funds for expenses associated with projects not involved in the current litigation. This argument is without merit. First of all, we note that each of the expenses subject to indemnification is limited by a requirement that the jury find the expenses to be “reasonable, proper, and made in good faith.” Thus, it is unlikely that the jury would permit Integon to receive indemnification for expenses that were not even associated with the bonded projects at issue in this case. Any possible bias the jury may have had toward Integon is contradicted by the fact that, of the $22,000.00 certificate of deposit, the jury only awarded Integon the amount it claimed it was entitled to, $14,257.00. In addition, Bull does not allege that Integon made such a request for indemnification of expenses associated with bonded projects unrelated to this case. Thus, any alleged error is hypothetical and not prejudicial to Bull.
Fourth, Bull challenges Instruction #35, which states that:
JURY INSTRUCTION NO. 35
Alternatively, Integon asserts a right to Bank of Augusta certificate of deposit number 17923 by virtue of a Writ of Garnishment which is served on Bank of Augusta in enforcement of a judgment which Integon has against Cornelious Construction Company. This certificate of deposit is garnishable by Integon in proportion to Cornelious Construction Company’s ownership of the funds.
You may consider relevant evidence to determine the respective contributions of Bull and Cornelious Construction Company, as well as any intent of Bull to make a gift to Cornelious Construction Company.
Bull has the burden of proving what portion of the certificate of deposit is actually owned by him.
Bull asserts the instruction is erroneous because there was no evidence of any gift from Bull to Cornelious and because it places the burden of proving Integon’s claim to the certificate on Bull. Bull asserts the proper instruction should state that each party has the burden of proving its own interest in or claim to the certificate.
Bull’s argument with respect to Instruction #35 is wholly without merit. First, while there is testimony abstracted that directly indicates Bull made a gift to Cornelious, there is evidence that Bull included Cornelious as joint owner of the certificate of deposit in question. From this evidence, the jury could infer, among other things, that Bull made a gift to Cornelious. Second, Bull’s assertion that the challenged instruction improperly distributes the burden of proof is entirely without merit. Instruction #23 informed the jury that Bull claimed superior ownership of the certificate of deposit. Thus, Instruction #35 reads exactly as Bull argues it should read, i.e., it places the burden of proving a claim on the party asserting the claim. There was no error in the trial court’s giving Instruction #35.
Bull’s second argument on cross-appeal is that he should have been awarded penalties and attorneys fees pursuant to Ark. Code Ann § 23-79-208 (1987). The trial court denied Bull’s request for penalties and fees because he did not recover the amount sued for as required by section 23-79-208. Bull argued that the pleadings were amended to conform to the proof, therefore he recovered the amount sued for and should be awarded the penalties and fees.
Obviously, our reversal of Bull’s verdicts renders this issue moot. There is no longer any doubt that he did not recover the amount sued for. Therefore, there was no prejudicial error in the denial of penalties and fees.
The judgment is reversed and dismissed on direct appeal and affirmed on cross-appeal. | [
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John A. Fogleman, Chief Justice.
Charles Tillman was found guilty of theft by feloniously receiving and retaining a television set valued in excess of $100, knowing or having good reason to believe it was stolen. He was sentenced to five years imprisonment after a jury trial on January 25, 1979. On appeal, Tillman contends that the trial court erred in denying his motion to quash a search and to suppress as evidence the television, two screwdrivers and a knife seized as a result of that search. He also contends that the evidence was not sufficient to support his conviction of the felony of theft by receiving because there was no showing that the value of the television was in excess of $100. We do not agree with either contention, so we affirm the judgment.
On November 23, 1978, at about 7:50 p.m. Marshall Clarey, who resided in Apartment 5, at 969 Holly Street in Fayetteville, noticed an older model gold Cadillac automobile parked in the parking lot at the apartment complex. He observed a black male wearing a coat and a knit hat leaning against the car. A few minutes later, after the car had left, Clarey noticed that the door to a neighbor’s apartment was open. Knowing the neighbor was out of town, Clarey entered the apartment, discovered that the neighbor’s television set was missing, and called the police. While waiting for the police to arrive, Clarey saw the same automobile pass the apartment twice and noticed that it was occupied by two people.
Officer George Coffman, a sergeant in the Criminal Investigation Division of the Fayetteville Police Department was advised of the burglary of the apartment by a radio message about 8:15 p.m. He was told that a gold Cadillac in which there were one or two men, one of whom was black, was seen leaving the apartment complex where the burglary occurred. He said he received a message 10 or 15 minutes later that a television set had been taken. Coffman said that he was aware that, about three days earlier, a gold Cadillac had been seen by the victim of a burglary about three hours before his apartment had been burglarized, that he knew that Tillman drove a gold Cadillac, that he had “worked” several burglary cases in which Tillman was convicted and that 23 apartment burglaries had been cleared when Tillman had been arrested. He directed Paul Wood and Mark Hanna, also of the Fayetteville Police Department, to go to the area in which Tillman lived. Coffman stationed himself about a half block from the residence at which Tillman was living.
Paul Wood testified that he saw and stopped appellant in the gold Cadillac in a public “alleyway.” According to both Tillman and Officer Coffman, the alleyway was Meadow Street which ran behind the Ozark Theatre Building. Wood testified that he had been told by Coffman that a car of that description with a black person driving it, had been seen leaving the scene of a burglary. Wood asked the driver for his driver’s license for identification. Tillman gave the officer his driver’s license and the officer took it, went back to his police car and advised Coffman by radio that he had stopped the car. Wood said that he then awaited Coffman’s arrival. Coffman testified that he arrived at the vehicle where Tillman was within three minutes after he received Wood’s message, which was about 8:35 p.m., only about 20 or 25 minutes after he had received the first report of the burglary. He said that Tillman knew him and spoke to him. At that time, Officers Mark Hanna and Mike Carl had also arrived on the scene. Coffman said that the Tillman car was empty and that Tillman was in Officer Wood’s car. Coffman testified that he told Tillman that a car matching the description of Tillman’s car had been seen at a burglary a short time earlier and that officers believed that they had reasonable grounds to search his car for a stolen television. According to Coffman, Tillman asked if he had a search warrant, and when he told Tillman that he did not, Tillman said he could not search the car. Coffman said he again advised Tillman that his understanding of the law was that the officers did have probable cause to search the car, asked Tillman for the car keys, and, when Tillman refused to-give them to him, warned Tillman that if the officers could not have the keys, the car would be forcibly opened. Coffman said that Tillman became unruly and that the officers found it necessary to handcuff him for his protection and theirs. Coffman then removed the keys to the automobile from Tillman’s pocket, opened the trunk and found a Sears color television, some hubcaps, two screwdrivers, a knife and a tape recorder.
Both parties say that Tillman had not been arrested at the time of the search and it is admitted that no warrant authorizing the search had been issued. The trial judge denied the motion to suppress the evidence, holding that probable cause existed, that the requirements of Rule 14.1, [Arkansas Rules of Criminal Procedure, Ark. Star. Ann. Vol. 4A (Repl. 1977)] had been met and that the search was reasonable.
There were minor conflicts between the testimony of the officers and that of Tillman at the suppression hearing. The only conflict that might be considered significant is that Tillman testified that he never became unruly or belligerent, but when he declined to open the trunk of his car the second time, he was grabbed by three or four policemen and handcuffed, after which the keys were taken from his pocket. Tillman now contends that he was improperly stopped and that, in any event, the officers had no right to seize and to search his person for anything other than weapons.
We simply do not agree with Tillman’s contention that the officers did not have reasonable cause to believe that his moving, or readily movable, vehicle contained things subject to seizure. He says that the evidence fails to show that Officer Wood shared the information that Officer Coffman had and that he was stopped only on the basis of Wood’s information that a gold colored Cadillac driven by a black male had been seen at the scene of a burglary. The test for probable cause for the stopping and the searching of this automobile rests upon the collective information of the police officers, however, not upon the information of the officers stopping the vehicle. Perez v. State, 260 Ark. 438, 541 S.W. 2d 915. See also Jones v. State, 246 Ark. 1057, 441 S.W. 2d 458. Viewed in the light of the collective information of the police, not only was there reasonable cause for the search, pursuant to Rule 14.1, but the search was not unreasonable under Fourth Amendment standards, when we view the evidence in the light most favorable to the state, as we must. See Horton v. State, 262 Ark. 211, 555 S.W. 2d 226.
The right of police officers to stop a vehicle on the public highway for the purpose of searching it exists when there is probable cause for that action, i.e., when the facts within the knowledge of the officers, or of which they have had reasonably trustworthy information, when they intercept the vehicle, amounts to more than a mere suspicion that it contains something subject to seizure. Brinegar v. United States, 338 U.S. 160, 69 S. Ct. 1302, 93 L.Ed. 1879 (1949); Cox v. State, 254 Ark. 1, 491 S.W. 2d 802; Tygart v. State, 248 Ark. 125, 451 S.W. 2d 225, cert. den. 400 U.S. 807, 91 S. Ct. 50, 27 L.Ed. 2d 36 (1970). See also, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed. 2d 419 (1970); Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629 (1931); Perez v. State, supra; Anderson v. State, 256 Ark. 912, 511 S.W. 2d 151.
The officers clearly had the right to stop the vehicle. No search was attempted until Coffman arrived. When he did, he recognized Tillman. The parties agree that there was no arrest until after the search and the earlier existence of probable cause for arrest is not material.
The right to search and the validity of the seizure were not dependent upon the right to arrest; they were dependent only upon the reasonable cause the officers had for believing that the contents of the automobile were subject to seizure. Carroll v. United States, 267 U.S. 132, 46 S.Ct. 280, 69 L.Ed. 543 (1925); Chambers v. Maroney, supra; Cox v. State, supra; Moore v. State, 244 Ark. 1197, 429 S.W. 2d 122. Since the search was not incident to an arrest and not based upon a warrant, the reasonableness of the search turns upon its propriety as the search of an automobile.
The so-called “automobile exception” to the requirement of a warrant authorizing a search was first stated in Carroll v. United States, supra. It was based upon the premise that the Fourth Amendment to the United States Constitution does not denounce all searches and seizures, but only those which are unreasonable. See Milburn v. State, 260 Ark. 553, 542 S.W. 2d 490; Freeman v. State, 258 Ark. 617, 527 S.W. 2d 909, 85 ALR 3d 1185. In Carroll, it was announced that the true rule is that a warrantless search and seizure are valid if made upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which is subject to seizure and destruction. It was recognized that there had long been a necessary difference between search of a store, dwelling house or other structure and a movable vehicle for contraband goods where it is not practicable to secure a warrant, because the vehicle can quickly be moved out of the locality or jurisdiction in which a warrant can be issued. See also, Chambers v. Maroney, supra. It is now well established that warrantless searches of automobiles may be reasonable when, under the same circumstances, a search of a home, store or other fixed piece of property would not be. Perez v. State, supra. The difference is based not only upon the mobility of the automobile, but upon the diminished expectation of privacy in an automobile. United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed. 2d 538 (1977); Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed. 2d 235 (1979).
An automobile on the public highway may be searched without a warrant if there are both exigent circumstances and probable cause to believe that it will yield contraband or evidence useful for the prosecution of crime. Chambers v. Maroney, supra; Freeman v. State, 258 Ark. 617, 527 S.W. 2d 909, 85 ALR 3d 1185. See also, Cox v. State, supra; Anderson v. State, supra; Roach v. State, 255 Ark. 773, 503 S.W. 2d 467; Tygart v. State, supra. For the purposes of the “automobile exception,” a public street and a public highway are viewed in the same light. See Arkansas v. Sanders, supra.
The knowledge of Coffman of Tillman’s previous activities as an apartment burglar, of the description of Tillman’s automobile and of the previous arrest and convictions of Tillman for burglary were important factors in the establishment of probable cause. See Brinegar v. United States, supra; Husty v. United States, supra. This knowledge, when coupled with the information the officers had about the presence of an automobile fitting the description of the one stopped and of a black man at the scene of the burglary, gave probable cause for search of the automobile, and, when the interior of the automobile was empty, a search of the trunk. See Chambers v. Maroney, supra; Tygart v. State, supra. Probable cause alone will not justify the warrantless search of an automobile; exigent circumstances must also exist. Freeman v. State, 258 Ark. 617, 527 S.W. 2d 909.
The first information the officers had about the burglary was received through the call by Clarey. Police officers then came to the burglarized apartment. Thereafter, Coffman was notified. His first notice was received at 8:15 p.m. The fact that a television set had been taken was disclosed to him 10 to 15 minutes later. The knowledge of Coffman was necessary to the establishment of probable cause. There was a real danger that, unless immediate action was taken, the automobile would be outside the jurisdiction of the officers or the television removed from it. Tillman testified that he was about to stop at the house of a friend on Meadow Street when the police stopped him. If the officers had not stopped the automobile when they did, the chance of finding the television set would have been slight, if not nonexistent. Where there is probable cause for the search of an automobile for particular articles and it is not practicable to secure a warrant because the opportunity to search is fleeting, if an effective search is to be made at any time, the vehicle must be searched immediately without a warrant or seized and held without a warrant for whatever period is necessary to obtain a search warrant. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed. 2d 419 (1970). An immediate search of an automobile stopped on a public highway is constitutionally permissible when the occupant has been alerted and the car’s contents may never be found again if a warrant must be obtained and, given probable cause to search, there is no difference between, on the one hand, seizing and holding a car before presenting the probable cause issue to a magistrate and, on the other hand, carrying out an immediate search without a warrant. Chambers v. Maroney, supra; Cox v. State, 254 Ark. 1,491 S.W. 2d 802. In this case, where Tillman had not been arrested and had possession of the keys to the automobile, and the officers obviously were not confident before the search that they had probable cause for the arrest of Tillman, the right of the officers to seize and hold the automobile and thereby deny its use to anyone was questionable. In any event, the difficulties in seizing and securing automobiles have led the United States Supreme Court to make special allowances for search after police have seized an automobile and have it securely within their control. Arkansas v. Sanders, supra. We have under somewhat similar circumstances, said that the question was whether it was reasonably practical to obtain a search warrant. The search here was valid if it was not reasonably practical to obtain a search warrant. Perez v. State, 260 Ark. 438, 541 S.W. 2d 915; Tygart v. State, 248 Ark. 125, 451 S.W. 2d 225, cert. den. 400 U.S. 807, 91 S. Ct. 50, 27 L.Ed. 2d 36 (1970).
When the circumstances furnishing probable cause to search a particular automobile are unforeseeable, so that, if an effective search is to be made, it must be made immediately and without a warrant or the car must be seized and held without a warrant for whatever period is necessary to obtain a search warrant, either course is reasonable. Chambers v. Maroney, supra; Perez v. State, supra. The only practical action for the officers to have taken was to search the vehicle at the place it was stopped. It was highly impractical to obtain a •search warrant under these circumstances. The difficulties in obtaining a warrant were greater than usual at the time of day the search took place because all the events took place on Thanksgiving day, a universally observed holiday.
Assuming that the seizure of the car keys from the person of Tillman was an unreasonable intrusion, the search of the trunk and the seizure of the television set were not fruit of that intrusion because the officers had the right to search the trunk without the warrant and without the keys and the successful search was not dependent upon their seizure, since they could have, as they said, and undoubtedly would have, broken into the trunk for that purpose. See Somer v. United States, 138 F. 2d 790 (2 Cir., 1943); People v. Fitzpatrick, 32 N.Y. 2d 499, 346 N.Y.S. 2d 793, 300 N.E. 2d 139 (1973).
This case is not related in any way to Scisney v. State, 270 Ark. 610, 605 S.W. 2d 451 (1980), or Burkett v. State, 271 Ark. 150, 607 S.W. 2d 319 (1940). In Scisney, the only issue was whether there was a violation of the Fourth Amendment to the United States Constitution by a warrantless search of a suitcase found in the trunk of the accused’s automobile after he had been taken into custody with the intention of placing him under arrest for driving while under the influence of intoxicating liquors or drugs. That search was held unreasonable upon the basis of an owner’s expectation of privacy in his luggage, following Sanders v. State, 262 Ark. 595, 559 S.W. 2d 704, affd. sub nom Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed. 2d 235 (1979); United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed. 2d 538 (1977); Torres v. Puerto Rico, 442 U.S. 465, 99 S. Ct. 2425, 61 L.Ed. 2d 1 (1979). We also found that there was no probable cause for believing that contraband was in the trunk. We found there were no exigent circumstances, because the vehicle was in the complete control of the officers, who had it towed to the police station by a wrecker, which would have afforded them ample opportunity to obtain a search warrant to search the trunk and suitcases after it was impounded. In Burkett, not only was the search of a locked automobile trunk made after an arrest of both occupants of the vehicle, and a call for a tow truck for the purpose of impounding the vehicle, but it was without probable cause.
Appellant also contends that the state failed to show that the television set had a value of more than $100. Wendel Fleming, its owner, testified that it was a 19-inch Sears color set he had purchased a year and a half prior to its theft, that the purchase price was $47 6, that he had never had any operational problems with it and that it was in good condition when stolen. The purchase price paid by the owner is admissible as a factor for the jury to consider in determining market value, when it is not too remote in time and bears a reasonable relation to present value. Williams v. State, 252 Ark. 1289, 482 S.W. 2d 810. This was the only evidence of value. Appellant contends that, because the set had been used for a year and a half, evidence of the purchase price was not substantial evidence of a market value of $100, relying upon Cannon v. State, 265 Ark. 270, 578 S.W. 2d 20. In that case a 1955 model automobile had been stolen. It had been purchased 12 years before the theft for $148. Naturally we held this did not show a value of $100 at the time of the theft. The situation here is entirely different. Unlike the situation in Cannon, where the automobile was 23 years old and the purchase so remote in time, here the evidence of value was not so remote and was substantial.
The judgment is affirmed.
Purtue, J., dissents. | [
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John A. Fogleman, Chief Justice.
This case involves the interpretation and construction of the Arkansas Gross Receipts Tax Act of 1941, Act 386 of 1941, as amended, which is digested as Ark. Stat. Ann. § 84-1901 et seq (Repl. 1980). The Commissioner of Revenues, then William D. Gaddy, assessed appellee, DLM, Inc., $30,072.43 as gross receipts tax for the audit period of May 1, 1974 through July 31, 1977. DLM, Inc., is an Oklahoma corporation authorized to do business in Arkansas with its principal office and place of business at Malvern, Arkansas. It is engaged in the sale of dock levelers. A dock leveler is an iron or steel loading device that bridges the space between the loading docks at motor freight terminals and warehouses and trucks being loaded.
The assessment was made on sales of dock levelers to common carriers who picked up the dock levelers in Arkansas, pursuant to bills of lading. The Commissioner of Revenues takes the position that the sales were Arkansas sales subject to the gross receipts tax. DLM contends they are interstate sales and not subject to the tax. DLM protested the assessment and requested an administrative hearing. After the Arkansas Revenue Department Hearing Board had sustained the assessment in its entirety, DLM, on January 5, 1979, brought suit in the Chancery Court of Pulaski County seeking to have the assessment set aside. On March 14, 1980, that court entered a decree setting the assessment aside. On this appeal, the Commissioner of Revenues asserts the following points for reversal:
I
THE LOWER COURT ERRED IN HOLDING THAT NEITHER TITLE TO, NOR POSSESSION OF, THE GOODS WAS TRANSFERRED TO THE PURCHASER WITHIN THE STATE OF ARKANSAS PURSUANT TO THE MEANING OF THE ARKANSAS GROSS RECEIPTS TAX ACT, CODIFIED AT ARK. STAT. ANN. § 84-1903 (a), SINCE RECEIPT OF THE DOCK LEVELERS WAS TAKEN WITHIN ARKANSAS.
II
SINCE ARK. STAT. ANN. § 84-1902 (c) CLEARLY AND PRECISELY DEFINES A SALE, THE LOWER COURT ERRED IN RELYING UPON PARAGRAPH TWO (2) OF ARTICLE 27.
Ill
THE LOWER COURT ERRED IN HOLDING THAT THE CASE OF PRESSED STEEL CAR CO. V. LYONS, 1 ILL. 2d 95, 129 NE 2d 765, (1955), WAS NOT ON POINT BECAUSE THE SALES IN THAT CASE WHERE “F.O.B. SHIPPING POINT” AS OPPOSED TO THE TERMS BEING “F.O.B. POINT OF DESTINATION” IN THE CASE AT HAND.
There is no dispute about the facts. DLM manufacturers and sells hydraulic dock levelers. It also sells ramps, lifting hooks, rubber bump blocks and other accessories for dock levelers. The sales in question were made to truck lines who were common carriers having their principal places of business in other states. DLM maintains a sales force that travels throughout the United States calling on prospective customers, principally the major truck lines operating as common carriers. As a result of sales calls, orders are received by telephone and mail by DLM at Malvern, where they are accepted and confirmed. The goods ordered are banded, packaged and prepared at Malvern for shipment by various motor carriers. The sales contracts require delivery f.o.b. destination outside Arkansas. Bills of lading were prepared on a form prescribed by the Interstate Commerce Commission. In that form there is a statement that the shipper (DLM) is obligated to deliver the goods to the point they are to be installed and to install them. DLM is responsible for risk of loss in transit and for satisfactory installation of the equipment. The goods are picked up by common carriers, having authority from the Interstate Commerce Commission, at DLM’s place of business in Malvern. The sales in question are those in which the goods were picked up by the purchaser in Arkansas, either at Malvern or at some other point to which another carrier had brought them.
The dock levelers were guaranteed by DLM for one year. DLM employs independent contractors to install them. As soon as DLM makes certain that levelers shipped have arrived at their destination, the independent contractor is advised to proceed with the installation. DLM is paid after installation is complete.
The Arkansas gross receipts tax of 3 percent is levied upon the gross proceeds or gross receipts derived from sales of tangible personal property. Ark. Stat. Ann. § 84-1903 (a) (Repl. 1980). Sale, as defined by the statute, means the transfer of title or possession of tangible personal property for a valuable consideration, “regardless of the manner, method, instrumentality or device by which the transfer is accomplished.” Ark. Stat. Ann. § 84-1902 (c) (Repl. 1980). As appellant points out, the determining issue is whether either title or possession was transferred from DLM, Inc., to the purchasing carrier when the carrier received the property within the State of Arkansas. We agree with the chancery court that neither title nor possession was transferred to the purchasers when they, as common carriers, picked up the goods they had ordered.
Appellant relies principally upon St. Louis, Iron Mt. & S. Ry. Co. v. Citizens Bank of Little Rock, 87 Ark. 26, 112 S.E. 154, in which it was held that a bill of lading is both a receipt and a contract and that, as a receipt, it is prima facie but not conclusive evidence of the facts recited. Since a bill of lading is a receipt, appellant argues, this means that possession is transferred and, if possession is transferred, a sale has occurred within the meaning of Ark. Stat. Ann. § 84-1902 (c). Appellant reads too much into the opinion on which he relies. The action in that case for recovery of the value of cotton delivered by the railway company without surrender of the bill of lading issued for it. Of course, the issuance of a bill of lading is a receipt by the carrier. There is no question about receipt of the goods. The question here is whether the receipt was given as a carrier or as the purchaser of the goods and the decision relied upon by appellant has no application here. We have heretofore held that the statutory definition of sale does not include every transaction in which there is a transfer of possession for a consideration. See Harvey v. Southern Wooden Box. Inc., 253 Ark. 290, 486 S.W. 2d 65. The purpose of the transfer of possession is important. The delivery here .was for the purpose of transportation of the goods to the place where they would be installed. The bills of lading were on standard forms.
Appellant also relies upon Pressed Steel Car Co. v. Lyons, 7 Ill. 2d 95, 129 N.E. 2d 765 (1955), in which the Illinois Supreme Court held that a tax, imposed upon the sale of goods, applied to goods sold to a railroad and shipped via the purchaser under standard bills of lading f.o.b. point of origin. The precise issue there was not the exact issue here. It was whether Illinois could levy a tax on a sale to a common carrier who receives delivery under a contract for the shipment of goods shipped to purchasing common carriers under standard uniform bills of lading in light of the commerce clause of the United States Constitution. The Illinois court said that the question was whether the state was compelled by the commerce clause of the federal constitution to treat railroads who carry outside the state the goods they purchase within it differently from others who do the same thing. We are not faced with that question.
Assessment of the facts in the case which are pertinent to the inquiry here presents some difficulty. The orders by the railroads were placed by the Chicago office of four of the five railroads. Some of the orders specified that the freight be prepaid. On others the goods were shipped collect and the seller deducted freight from the invoice price. The Illinois Supreme Court said that the parties did not consider that the variables in the payment of freight affected the intrastate character of the transaction. The case was decided on the basis of a holding that the commerce clause does not require a state to recognize any dual personality of a carrier for taxing purposes.
A significant difference between the case before us and Pressed Steel is the obligation of appellee to install the equipment after its arrival at its ultimate destination. In Pressed Steel, there was no similar obligation; the orders only specified that title, or title and possession, should not pass to the consignee until the goods reached their destination, or that the goods were subject to inspection at destination.
Regardless of the distinctions to be made between the Illinois case and this one, we find the logic of the California Supreme Court inStandard Oil Company of California v. Johnson, 24 Cal. 2d 40, 147 P. 2d 577 (1944) more convincing. The statutory definition of “sale” in that case was not materially different from the definition we are considering. In that case the seller delivered oil to a railroad, a commercial carrier, which was the purchaser, under standard bills of lading with the railroad named as consignee' with freight charges prepaid. The California court took the position that whether delivery to a carrier constitutes delivery to a buyer depends upon the intention of the parties as ascertained from the contract and circumstances of the case. As that court pointed out, ordinarily, unless a contrary intent appears, where a seller contracts to deliver goods at a given destination and does deliver them to a carrier consigned to the buyer f.o.b. point of destination, delivery to the carrier is not delivery to the buyer, and the carrier is the agent of the seller, not the buyer, in transporting the property. That court felt that the mere fact that the seller did not select a different carrier should not make the sale taxable in California. It was held that the intention of the parties was that the railroad receive the oil as a common carrier and the delivery to the railroad as a buyer did not occur until the oil reached its destination outside the state.
Under the holding of the California court and the view we take, there is no reason why the form of the transaction should be disregarded, if the transaction is bona fide, even though avoidance of the tax is a part of it. There is not the slightest suggestion that the transactions involved here were a subterfuge with intention to defraud the State of Arkansas of taxes which would otherwise be due it. There is no reason why a seller should be required to discriminate against its own customer in shipping goods purchased by that customer.
In the California case it appears that the goods, fuel oil, were usable at any time after they were surrendered to the carrier by the seller. The fact that the seller here had the contractual obligation to install the goods after they reached their destinations is not without significance, even though it may not be controlling.
Appellant’s argument that the executive construction of the statute by the Administrative Tax Hearing Board should not be disturbed except for cogent reasons or unless clearly erroneous, citing Cook, Comm’r. v. Wilson, 208 Ark. 459, 187 S.W. 2d 7, is not convincing here. Putting aside for a moment the fact that we find the board’s determination clearly erroneous, the argument overlooks two significant facts. The first one was also overlooked by appellant in its abstract of the record, i.e., testimony that DLM had been previously audited and found not liable for additional taxes, even though there was not any difference in the conduct of appellee’s business during that audit period and appellee had only paid the gross receipts tax on sale of goods destined to remain in Arkansas. The other is that, in construing a statute, any doubt about its imposition of a tax on a taxpayer must be resolved in favor of the taxpayer and against the taxing power. Heath v. El Dorado Golf & Country Club, 258 Ark. 664, 528 S.W. 2d 394; Cook, Comm’r. v. Southwest Hotels, Inc., 213 Ark. 140, 290 S.W. 2d 469; Wiseman v. Arkansas Utilities Co., 191 Ark. 854, 88 S.W. 2d 81. The express purpose to impose a tax upon a transaction must be so clear that no reasonable mind should conclude that the intent was otherwise. Cook, Comm’r.. v. Southwest Hotels, Inc., supra.
The decree of the chancery court is affirmed.
As we see it, the only significance of § 2 of Article 27 of appellant’s regulations is its recognition of this general rule. | [
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PER CURIAM.
Petitioner Carl Albert Collins was convicted by a jury in 1974 of capital felony murder and sentenced to death by electrocution. The primary issue on appeal was the constitutionality of Act 438 of 1973, Ark. Stat. Ann. § 41-4701 et seq (Supp. 1973), which reinstated the death penalty. This Court found the statute constitutional and affirmed the conviction on December 22, 1975. Collins v. State, 259 Ark. 8, 531 S.W. 2d 17 (1975). Motion to stay mandate pending appeal to the United States Supreme Court was granted February 2, 1976. Petition for certiorari for review of this Court’s judgment affirming the judgment of the circuit court was filed in the United States Supreme Court and that Court vacated this Court’s judgment insofar as it left the death penalty imposed and ordered the cause remanded for consideration in light of Gregg v. Georgia, 428 U.S. 153 (1976); Proffitt v. Florida, 428 U.S. 242 (1916); Jurek v. Texas, 428 U.S. 262 (1976); Woodson v. North Carolina, 428 U.S. 280 (1976); and Roberts v. Louisiana, 428 U.S. 325 (1976). Mandate vacating judgment was filed in this Court November 18, 1976. Upon reconsideration, the Arkansas Supreme Court again concluded that the death penalty under Arkansas statutes was constitutional and affirmed the judgment on March 7, 1977. Collins v. State, 261 Ark. 195, 548 S.W. 2d 106 (1977). Certiorari was denied and the mandate was forwarded to the governor of this state October 25, 1977. The United States Supreme Court denied rehearing on November 28,1977, at 434 U.S. 977 (1977).
Collins filed his petition for permission to proceed under Rule 37 on December 19, 1980, more than three years after the United States Supreme Court denied rehearing. Rule 37.2(c), Arkansas Rules of Criminal Procedure, Ark. Stat. Ann. V. 4A (Supp. 1974) provides that such a petition must be filed within three years of the date of commitment. The petition is clearly untimely and will be denied unless the grounds asserted are such as to render the judgment against Collins void. Since we find no grounds contained in Collins’ petition which will render the judgment void, the petition is denied.
Rule 37 was not intended to provide a method for the review of mere error in the conduct of the trial or to serve as a substitute for appeal. Clark v. State, 255 Ark. 13, 498 S.W. 2d 657 (1973). As the Rule states, it affords a remedy when the sentence 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). The present petition presents a number of issues all of which are alleged to raise issues so fundamental as to render the sentence and judgment void and open to collateral attack. The issues, however, could, and should, have been raised at trial or on direct appeal. It is well settled that constitutional questions are waived if not raised in accordance with controlling rules of procedure. Moore v. Illinois, 408 U.S. 786 (1952); Hulsey v. State, 268 Ark. 312, 595 S.W. 2d 934, reh. denied, 268 Ark. 315, 599 S.W. 2d 729 (1980); Williams v. Edmondson, 257 Ark. 837, 250 S.W. 2d 260 (1975); Orman v. Bishop, 245 Ark. 887, 435 S.W. 2d 440 (1968). As stated in Hulsey, supra, in this Court, contentions not argued by the appellant on first appeal are waived. Sarkco v. Edwards, 252 Ark. 1082, 482 S.W. 2d 623 (1972). It is imperative that judgments in criminal cases have stability and finality. Hulsey, supra.
Petitioner first alleges that the judgment is void pursuant to Turner v. Louisiana, 379 U.S. 466 (1965) because a material witness at the trial, Sgt. Quimby Johnson, also worked as a “security person and perhaps a bailiff for the jury.” In Turner two deputy sheriffs who were the principal prosecution witnesses were in continuous association with the jurors, eating dinner with them, running errands for them and driving them to and from the lodgings. The Court found that the two had been the “official guardians” of the jury and that the jury was likely to find their testimony more credible by virtue of that relationship. Here, the petitioner has offered nothing to show that such a relationship existed; however, the record does indicate that Sgt. Johnson served in some capacity as a security officer.
MR. GIBSON (Prosecuting Attorney): For purpose of security in the courtroom, the State would request that the Rule be waived as to Sheriff s Deputy Snow and Sgt. Quimby Johnson,, Investigator, both of which may or may not testify. There is a possibility they will, but they are about the only good security officers we have.
THE COURT: There might be some sort of feeling in the local community, so for the protection . . .
MR. LINEBERGER (Defense Counsel): We have no objections. We have discussed that with the prosecutor.
THE COURT: I think we should have adequate protection against any kind of emotional outburst that might arise.
MR. GIBSON: Their testimony would be relatively minor.
THE COURT: Then it’s agreeable?
MR. LINEBERGER: It’s agreeable, your honor.
The allegations of the petition are apparently based on this exchange, but the petition does not offer sufficient evidence to warrant setting the conviction aside. Petitioner also alleges, that even if this Court does not find merit to the allegation that Sgt. Johnson’s presence in the courtroom renders the judgment void, there remains a question of whether counsel was ineffective in failing to object to his presence. This allegation shall be addressed later.
Petitioner next alleges that the judgment is void because the trial court excused several members of the jury venire without affording counsel the opportunity to voir dire them on their reasons for not wishing to serve. No objection was made by the trial counsel to the potential jurors’ being excused by the Court and the matter could not therefore be properly raised on appeal. Clark v. State, 264 Ark. 630, 573 S.W. 2d 622 (1978). Petitioner asserts that the exclusion of these jurors for cause violated this Court’s ruling in Hall v. State, 259 Ark. 815, 537 S.W. 2d 155 (1976). This argument is without merit. In Hall, the trial court excused all farmers (some 25-30 persons) without requiring any of them to appear and ask to be excused, and this Court found such a practice to be deliberate and systematic exclusion of a large class of eligible jurors, Hall, at 818-819.
In the instant case, the trial court heard the reasons given by the four potential jurors for not wishing to serve and properly exercised its discretion in excusing them. Furthermore, even though students are not listed in Ark. Stat. Ann. § 39-108 (Supp. 1979) as persons exempt from service, the trial court has the discretion to excuse any juror “when, for any reason, his own interests or those of the public will, in the opinion of the Court be materially injured by his attendance.” Ark. Stat. Ann. § 39-107 (Supp. 1979).
Petitioner also challenges the judgment on the grounds that the lack of individual, sequestered voir dire made the jury selection process unreliable. In support of his allegation, petitioner cites only one case, the 1980 California Supreme Court opinion in Hovey v. Superior Court of Alameda County, 28 Cal. 1, 616 P. 2d 1301, 168 Cal. Reptr. 128, 181 (August 28, 1980), which we do not consider controlling. Petitioner has presented nothing to show that petitioner was entitled to an individual, sequestered voir dire.
Petitioner argues that the judgment is void because the Court had a duty to instruct the jury on all possible lesser included offenses, including murder in the first degree. Petitioner alleges that Westbrook v. State, 265 Ark. 736, 580 S.W. 2d 702 (1979) imposes a duty upon the trial court to give instructions on all applicable lesser included offenses even though defense counsel has not requested such instructions. There is no such duty imposed on the trial court by Westbrook. Westbrook presented a situation quite different from this case. There the case went to the jury with only one possible conviction — capital murder. In petitioner’s case the jury was instructed as to second degree murder and clearly had a choice as to whether either charge was supported by the evidence. This Court has recently reiterated that it is reversible error to refuse to give a requested instruction where there is the slightest evidence to warrant such an instruction, Brewer v. State, 271 Ark. 254, 608 S.W. 2d 363 (1980); Robinson v. State, 269 Ark. 90, 598 S.W. 2d 241 (1980), but no duty was placed on the trial court to give an instruction not requested by counsel. If counsel concludes that a particular instruction is warranted, it is incumbent upon counsel to request that instruction.
Petitioner next contends that the judgment is void because Act 438 of 1973 unconstitutionally placed a burden on petitioner to prove mitigating circumstances and unconstitutionally limited the factors that could be considered in mitigation, a violation of the “premise” in Lockett v. Ohio, 438 U.S. 568 (1978). In Lockett, a four-judge plurality held that the “Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Lockett, at 605. This Court has considered the effect of Lockett, in Neal v. State, 270 Ark. 442, 605 S.W. 2d 421 (1980). In Neal, as in this case, where the appellant argued that Ark. Stat. Ann. § 41-4701 et seq. (Supp. 1973), repealed by Act 280 of 1975 (Crim. Supp. 1975), unconstitutionally limited the mitigating circumstances the jury could consider, this Court found:
The Ohio statute considered in Lockett was quite unlike the Arkansas statute applied in Neal’s trial. That Ohio law required a trial judge to impose the death penalty unless he found by a preponderance of the evidence that (1) the victim had induced or facilitated the offense, (2) it was unlikely that Lockett would have committed the offense but for the fact that she was under duress, coercion or strong provocation, or (3) the offense was primarily the product of the accused’s psychosis or mental deficiency. The statute under which appellant was tried was materially different. It permitted evidence in the sentencing stage as to any matters relevant to sentencing. Ark. Stat. Ann. § 41-4710 (c) (Supp. 1973). Under that Act (Ark. Stat. Ann. § 41-4701 et seq. [Supp. 1973]), the jury was not compelled to impose the death sentence whenever it found aggravating circumstances but no mitigating circumstance, unless it also found, that sufficient aggravating circumstances existed beyond a reasonable doubt to justify a sentence of death. Neal, 270 Ark. at 449-450.
As in Neal, this Court finds that the statute does not unconstitutionally limit the factors that can be considered in mitigation. Further, this argument was addressed by the Court on first appeal and this Court found that Act 438 of 1973 was valid.
With regard to petitioner’s allegations that Act 438 of 1973 unconstitutionally placed a burden on petitioner to prove mitigating circumstances, this Court held on first appeal that the state had the burden of proof in the issue of punishment. Collins, 259 Ark. at 15.
Finally, petitioner alleges ineffective assistance of counsel. Inadequate representation by counsel is a ground for postconviction relief where there has not been an adequate opportunity to raise the question prior to direct appeal. Hilliard v. State, 259 Ark. 81, 531 S.W. 2d 463 (1976). Errors, omissions, improvident strategy or bad tactics on the part of counsel do not require an evidentiary hearing on an allegation of ineffective assistance of counsel or justify postconviction relief from a sentence. Clark v. State, 255 Ark. 13, 498 S.W. 2d 657 (1973). The petitioner must first show prejudice by the alleged incompetence of counsel. Leasure v. State, 254 Ark. 961, 497 S.W. 2d 1 (1973). An evidentiary hearing is not required when the allegations of ineffectiveness relate only to matters ordinarily within the realm of counsel’s judgment. Leasure, supra. The question presented in an evidentiary hearing is whether the petitioner has shown by a preponderance of the evidence that the acts or omissions of the attorney resulted in making the proceedings a farce and mockery of justice shocking to the conscience of the court. Sheppard v. State, 255 Ark. 40, 498 S.W. 2d 668 (1973). This Court has said that “the mockery of justice” standard for the determination of ineffectiveness of counsel is not to be taken literally. It does, however, place a substantial burden on the petitioner in proving that counsel was inadequate. McDonald v. State, 257 Ark. 879, 520 S.W. 2d 292 (1975). Petitioner in this case had the burden of showing clearly and convincingly that his attorney was so patently lacking in competence that it became the duty of the trial court to be aware of it and to correct it. Petitioner has not met that burden.
In considering petitioner’s entitlement to a postconviction hearing on the ground of ineffectiveness of counsel, we are limited to the allegations of the petition. Petitioner alleges that his counsel did not:
1. Object to the exclusion of the four jurors discussed earlier;
2. Object to Sgt. Johnson’s serving as a security officer at the trial;
3. Request an individual, sequestered voir dire of the jury;
4. Attempt to rehabilitate juror Benton Wray;
5. Request an instruction on the lesser included offense of murder in the first degree;
6. Put on any evidence during the penalty phase of the trial and did not request that the “instructions on mitigation be modified to conform with the law;”
7. Object to the introduction into evidence of a prior conviction under a “First Offenders Act;” and
8. Object to instructions on mitigation.
With regard to the first allegation, we have stated that it was within the discretion of the trial court to excuse the jurors in question. Further, petitioner has not shown that he was prejudiced by the court’s action or that counsel’s failure to object was not a legitimate trial tactic.
The matter of counsel’s failure to object to Sgt. Johnson’s presence in the courtroom for security purposes would present a more pressing question if the petitioner had offered any substantiation for the allegation that petitioner was prejudiced by Sgt. Johnson’s presence. As petitioner correctly contends, a witness should not be allowed to interact with the jury to the extent that his credibility is enhanced in the eyes of the jurors, but petitioner has failed to show that Sgt. Johnson had any direct contact with the jury during the trial. The mere allegation, without support, that Johnson was “perhaps” a bailiff for the jury does not establish in itself that petitioner suffered any prejudice by counsel’s agreeing that Johnson should remain in the courtroom.
Counsel’s failure to request an individual sequestered voir dire was not an error on counsel’s part. Petitioner was able to cite only one jurisdiction in this county which requires such voir dire. It is obvious that counsel should not be expected to request what amounts to an extraordinary practice.
Petitioner alleges that counsel should have attempted to rehabilitate Benton Wray, a juror who stated in voir dire that he would not consider capital punishment “under any circumstances.” Petitioner contends that Witherspoon v. Illinois, 391 U.S. 510 (1968) and Davis v. Georgia, 429 U.S. 122 (1976) somehow place a duty on counsel to examine at length a witness who states opposition to the death penalty in hopes of getting him to equivocate. This argument is without merit. Counsel’s decision not to question a particular juror is within the realm of trial strategy.
Petitioner next argues that counsel was obligated to request an instruction on the lesser included offense of murder in the first degree, or at least, that counsel was obligated to record the reasons for not requesting such an instruction. Petitioner presents no support for this argument, and we find no duty to request an instruction on the lesser included offense of murder in the first degree in capital cases. It is reasonable to assume that counsel chose not to request the instruction on murder in the first degree as a matter of trial tactics and strategy. This Court found on appeal that there was sufficient evidence to sustain a conviction of capital felony murder. Collins, 261 Ark. at 223, and petitioner has not shown that he was prejudiced by counsel’s not requesting an instruction on murder in the first degree.
Counsel did not put on any evidence during the penalty phase of the trial and petitioner alleges that this can only be deemed ineffective assistance of counsel. Petitioner fails, however, to cite any evidence that was available. Clearly, counsel is not obligated to manufacture evidence if none exists. Since petitioner presented no specific evidence that could have been presented in mitigation, we cannot say that counsel was remiss in not presenting testimony during the penalty phase. Petitioner further alleges that counsel should have objected to the introduction into evidence of a prior conviction under “a First Offenders Act.” The record indicates petitioner was sentenced in 1973 to seven years in the Arkansas Department of Correction with four years suspended for armed robbery. The commitment order recommends that petitioner be incarcerated “at Tucker Prison with first offenders. . . .” The record does not support petitioner’s allegations that he was sentenced as part of a first offenders program and counsel therefore cannot be held accountable for failure to object to introduction of the conviction on that ground.
Petitioner also stated that counsel should have objected to “explanations” concerning the prior offense given by the trial court. He does not enlarge on this and this Court cannot search the record seeking to determine what is behind petitioner’s conclusory allegation.
Finally, petitioner argues that counsel should have objected to the instruction on mitigation that allegedly placed a burden on petitioner to prove mitigating circumstances beyond a reasonable doubt. The record shows that counsel for petitioner did object to the trial court’s instruction on mitigating circumstances (T. 277) and the trial court responded by clarifying its remarks:
The matter of mitigating circumstances is an opportunity the defendant has. There is no burden on him at all. The burden is on the state in the whole case . . . (T. 278).
Petition denied. | [
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John A. Fogleman, Chief Justice.
This is the second appeal in this case. The first appeal was assigned to the Court of Appeals pursuant to Rule 29 (3) of the Rules of the Supreme Court and Court of Appeals. The judgment of conviction was reversed because of the admission of the confession of a co-defendant and because of statements of the prosecuting attorney in closing argument focusing attention upon the fact that appellant had failed to take the witness stand. Appellant was again tried on the charge of aggravated robbery, found guilty and sentenced, as a habitual criminal, to 30 years imprisonment. He asserts on this appeal that the trial court erred by admitting into evidence testimony regarding pretrial identifications of appellant and in allowing an improper ■ in-court identification.; Appellant also contends that the judgment should be reversed because of improper comments by the prosecuting attorney during closing arguments.
As we understand appellant’s argument as to the in-court identification, he is contending that the trial judge never ruled that it was admissible as independently reliable and that there is no evidence to show its reliability. Appellant’s argument is focused for the most part, on the testimony of Joyce Laurell, an employee of Kentucky Fried Chicken at 7620 Cantrell Road, where the robbery was alleged to have occurred. She testified that at about 5:30 p.m. on August 12, 1978, a man entered the kitchen, where she was, through a swinging door, walked past her into the office área, looked into the office and then walked back to her. She said that this man addressed her, stood close to her, and asked her, in a low voice, if she could open the safe. She said that this man was white, tall and slender and that he wore a gray felt hat with a little feather in it and tinted, wire-rimmed sunglasses. Miss Laurell testified that, when she told this man she could not open the safe, he told her to get the money in the cash register, so she went to the register, “pulled the twenty” activating an alarm (which calls the police but is silent in place of business), removed the money in the register, returned to the kitchen, put the money in a bag and walked back to the office where the man was standing near the safe. She pointed to the defendant as that man. She said that, after she unsuccessfully tried to open the safe at the instruction of this man, he took the bag containing the money and told her he was leaving through the back door and that she should not follow him. She stated that she was positive that the defendant was the man who came into the place of business, intimidated her with a weapon (which she did not see) and took the money and that there was no question in her mind. She estimated that the time lapse between the white male’s coming into the kitchen and his leaving was 10 or 15 minutes.
On cross-examination she testified that she had written out a statement about the occurrence at the request of the police officers who had responded to the alarm 10 or 15 minutes after the robber had left, but had failed to include in it a description of the robber. She was unable to explain why she had not included a description but said that she knew the defendant was the man. She also admitted that when she gave a statement 13 days later, she again failed to include a description of the robber.
Appellant’s attorney then pursued a line of cross-examination emphasizing the elapsed time between the occurrence and the trial as a year and a half, or 455 days, and that Miss Laurell was identifying appellant on what she saw at the time of the occurrence. She admitted that she had been unable to identify a black male with whom she said she saw appellant leave the premises, although she had seen this man in the front part of the place of business when she went to the cash register and had engaged in conversation with him. She denied that the deputy prosecuting attorney had, earlier in the day, told her that the defendant would be sitting in court that day.
On redirect examination, the witness stated that defense counsel had asked her if she had previously testified under oath in court about this matter and she had said that she had. It was also brought out that she and the other employees present had given a description of the robber to the police officers after they had responded to the alarm and that the officers had written a description from these statements. She confirmed the description, basically, as: white male, 21 years old, six feet two inches, 145 pounds, dark hair, brown eyes; hat, gray felt; shirt, white and blue jeans.
A hearing at the bench was then conducted. The deputy prosecuting attorney said that, since defense counsel had questioned the ability of the witness to identify the robber after 455 days, he wanted to go into prior identifications, one of which was in a lineup 13 days after the robbery. The trial judge ruled that the witness might be asked if she had identified appellant at the time she gave her statement to the police 13 days after the incident. He would not, at that time, permit any inquiry pertaining to her identification of appellant at the previous trial. Thereafter, Miss Laurell testified, over appellant’s objection, that she had been able to identify McCroskey when she gave her second statement, that she was then certain that he was the man who robbed her, that she was still certain that he was, and that there was no doubt in her mind about the matter.
Later, an in camera hearing was held. The deputy prosecuting attorney insisted upon producing evidence that Joyce Laurell picked appellant as the robber from a fair lineup and that other employees who had testified picked appellant as the robber from photo spreads that were not suggestive. That hearing was a prolonged argument about the admissibility of testimony relating to previous identifications of appellant by witnesses who were at the place of business at the time of the robbery. We are unable to find any request by appellant during these hearings, out of the hearing of the jury, that the trial court exclude the in-court identifications. Yet appellant now argues that these were inadmissible and that, in the absence of a specific finding by the trial judge, the in-court identification of appellant was not admissible. We find no objection to the admissibility of these identifications during the trial in appellant’s abstract of the record. Although appellant did file a pretrial motion to suppress in-court identifications, it was never called up for hearing and appellant announced that he was ready for trial wihtout its having been heard. A bench-side statement by the prosecuting attorney that it had been withdrawn by appellant was never controverted. It is sufficient to say that appellant’s contention in this respect is totally without merit. The question is raised for the first time on appeal, so we will not consider it further, except to say that the authorities cited by appellant do not support his argument. Actually, we- have held that an in-court identification can be held inadmissible as a matter of law only if, after viewing the totality of the circumstances, it can be said that the identification was patently unreliable. Mayes v. State, 264 Ark. 283, 571 S.W. 2d 420. We find none of the in-court identification was patently unreliable. Furthermore, the only suggestion that the in-court identifications were tainted by pretrial procedures is the cross-examination pertaining to the possibility of a suggestion by the deputy prosecuting attorney that the person would be in the courtroom. This was denied and no showing was made that it had occurred.
Each of the witnesses who was present during the robbery was cross-examined extensively along the lines pursued in cross-examination of Miss Laurell about the reliability of his in-court identification. Each of them was positive and unwavering in identifying appellant. Some of the witnesses, testifying after the in camera hearing, were permitted, over appellant’s objection, to state that they had seen the defendant, whom they had identified after the robbery but before the second trial, were then able to recognize him as the robber, and had been positive in their identification of him, but were identifying appellant upon the basis of having seen him in August, 1978.
The tactics of defense counsel were appropriate. Ele was seeking to discredit the identification testimony of the witnesses, and to, at least, raise a reasonable possibility of mistake by reason of the lapse of time between their observation of the robber and the trial. It has been said that reliability is the linchpin in determining the admissibility of identification testimony (Lindsey v. State, 264 Ark. 430, 572 S.W. 2d 145); however, reliability of eyewitness identification is a question for the jury (as appellant’s trial counsel recognized), unless procedures leading to the identification are so defective as to undermine its reliability in which case the identification is inadmissible as a matter of law. Synoground v. State, 260 Ark. 756, 543 S.W. 2d 953. It was not shown that the in-court identifications were so tainted.
The evidence as to prior identifications was perhaps more restricted than necessary, particularly in view of the serious attack upon the reliability of the in-court identifications by cross-examination. We have held that an eyewitness to an offense may testify that he saw or identified an accused after the offense was committed. Cromwell v. State, 269 Ark. 104, 598 S.W. 2d 733; Bishop v. State, 236 Ark. 12, 364 S.W. 2d 676; Spivey v. State, 247 Ark. 752, 447 S.W. 2d 846. In Birones v. State, 105 Ark. 82, 150 S.W. 416, we held that it was competent for the victim of a crime to state how often she had seen the defendant before and after the commission of a crime and whether she recognized him. Recently we held that where, as here, the victim of a crime had been extensively cross-examined about an in-court identification of the accused and the description given to the police by the witness, the subject of prior identification is thereby opened up, and testimony by that witness as to a previous identification is not prejudicial error. White v. State, 270 Ark. 487, 605 S.W. 2d 11 (1980).
It is noteworthy that evidence of an out-of-court identification, formerly excluded as hearsay is not always hearsay and is admissible, over a hearsay objection when, as here, the witness making the identification testified and is subject to cross-examination at the trial. Ark. Stat. Ann. § 28-1001, Rule 801 (d) (1) (Repl. 1979). There was an implication of recent fabrication in appellant’s cross-examination of Miss Laurell, relating to conversation with the prosecuting attorney about appellant’s presence in the courtroom. Her previous identification of appellant was admissible as a prior consistent statement to rebut that charge. Ark. Stat. Ann. § 28-1001, Rule 801 (d) (1) (ii) (Repl. 1979). We find no error in connection with the admission of identification testimony.
Appellant complains of the following comments in the closing argument of the deputy prosecuting attorney:
If that’s all you did was go straight to the robbery and then bring a witness into court and say, “Do you see this man sitting at the table or do you see the defendant in the courtroom” you know, and kind of point at him, well, that wouldn’t be fair. But, if anything unfair was done, did Mr. Simpson ask about it? No, you can be assured that the identification in this case is a fair one and it is based on the knowledge of the witnesses.
We simply do not understand appellant’s objections. The trial court properly ruled that “this is argument.” The prosecutor was free to argue any inference reasonably and legitimately deducible from the evidence. Willis v. State, 220 Ark. 965, 251 S.W. 2d 816. The trial court has a wide latitude of discretion in controlling the arguments of counsel and its rulings in that regard will not be overturned on appeal in the absence of clear abuse. Perry v. State, 255 Ark. 378, 500 S.W. 2d 387. We find no abuse of discretion in this instance.
Appellant also contends that there is reversible error in the sentencing phase of the bifurcated trial when the trial court overruled appellant’s objection that the prosecuting attorney improperly commented upon appellant’s failure to take the witness stand by the following remarks during his argument to the jury.
Normally, the ones of you who have served before know that a person, when he takes the stand, his prior criminal record comes up and that usually is the only time it comes up. But this is a little different situation.
When you get a person charged as being an habitual criminal under the habitual criminal statute, after the jury has found him guilty, then they are allowed to hear his prior record.
The guilt of defendant had already been determined by the jury. The only thing that remained for its consideration was the punishment. The deputy prosecuting attorney was merely explaining to the jury that it had heard about the criminal record of the defendant and that this was different from the usual procedure.
Appellant relies upon Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, 24 ALR 3d 1065 (1967), and Adams v. State, 263 Ark. 536, 566 S.W. 2d 387. Adams was premised upon the fact that the jury could have surmised from the prosecuting attorney’s remarks that the defendant’s failure to testify was an admission of guilt, and that the remarks might have contributed to the conviction of the defendant in that case. The remarks here could not possibly have influenced the jury in convicting the defendant and there was no basis for surmising that appellant admitted guilt. Even the prior convictions were stipulated, and, as the judge remarked, without any inference that appellant could offer any rebuttal to that evidence.
In Chapman, the state’s attorney filed his argument to the jury from beginning to end with numerous references to the silence of the defendants and inferences of their guilt resulting therefrom. The trial judge instructed the jury that it could draw adverse inferences from their failure to testify. It was pointed out in the opinion that the case was such that, in the absence of the prosecutor’s comments, honest, fair-minded jurors might very well have brought in not guilty verdicts. For that reason, the United States Supreme Court concluded that the constitutional error could not be considered harmless. This case bears no resemblance to Chapman. The statement of the prosecuting attorney here is not of the nature of those in Chapman. Appellant’s guilt had already been determined and no honest, fair-minded jury could have found that he did not have the stipulated prior convictions.
It would have been better if the prosecuting attorney had left procedural explanations to the trial judge, but even if we found that there was error in his remarks, we can say with assurance that, in this case, it was harmless beyond a reasonable doubt.
The judgment is affirmed. | [
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David Newbern, Judge.
The main question presented is whether there was substantial evidence that property the appellant was found to have stolen exceeded $100 in value so as to authorize his conviction of felony theft. Ark. Stat. Ann., § 4l-2203(2)(b)(i) (Repl. 1977). We find the evidence was sufficient.
The appellant was convicted of stealing a suitcase packed with clothing and sundry items. Evidence showed he took the suitcase from an airport baggage area.
The owner of the suitcase testified as to the price she had determined a replacement suitcase of the same kind would bear ($96), and she testified as to the cost to her of some items such as slightly used cosmetics ($150) and 3 year old shoes ($90). These items, along with others, including a large amount of baby clothing, were in the suitcase when it was taken. She ultimately said the minimum value of the suitcase and its contents would have been $400 to $500.
The appellant finds objectionable the testimony as to the cosmetics, on the ground that the $150 included an undetermined amount of “services” provided by the seller. He contends the evidence with respect to the shoes cannot be considered substantial evidence of a value of over $100, and he contends the evidence as to the replacement value of the suitcase is only admissible if its market value cannot be determiend, and there is no showing that market value cannot be determined.
The appellant, however, does not address the testimony of the victim as to her opinion of the cumulative value of the property taken from her. That testimony was admissible and constitutes substantial evidence to support the finding the suitcase and its contents were worth in excess of $100. Polk v. State, 252 Ark. 320, 478 S.W. 2d 738 (1972). See also, Caldwell v. State, 255 Ark. 95, 498 S.W. 2d 858 (1973), and Cannon v. State, 265 Ark. 270, 578 S.W. 2d 20 (1979).
The appellant has also argued that the case should be remanded because the trial judge specified in the judgment that in view of evidence showing this to be the appellant’s second offense he must serve one-third of his sentence before he becomes eligible for parole. In Jones v. State, 270 Ark. 328 605 S.W. 2d 7 (1980), our supreme court held it was error for the court to enter a notation on the judgment that the defend ant was “not to be considered for parole.” The case was remanded for deletion of the reference to eligibility for parole, because it was held the trial court had no authority to determine how the parole board exercises its prerogative. In the case before us, the trial court has in no way affected the exercise of the board’s prerogative because Ark. Stat. Ann. § 43-2807(c)(1) (Repl. 1977), provides specifically that a person sentenced to confinement in the state penitentiary for the second time “shall be eligible for release on parole after having served one-third of the time for which sentenced with credit for good time allowances.” The statute further provides that a judge may require one-half of the sentence be served. We find no prejudice to the defendant resulted from the trial court’s statement in this respect, and therefore we affirm. Moore v. State, 262 Ark. 27, 553 S.W. 2d 29 (1977).
Affirmed. | [
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Darrell Hickman, Justice.
Arnold Lee Perkins was convicted in Pope County Circuit Court of rape and on appeal raises only one argument.
The argument is made that the trial court unduly limited Perkins’ counsel from inquiring of prospective jurors concerning their understanding of the State’s burden of proof. It may be that the court was wrong in observing that a prospective juror could not be questioned concerning the juror’s understanding of the question of reasonable doubt. The court remarked that the question should be limited to whether the prospective juror would follow the law. Fauna v. State, 265 Ark. 934, 582 S.W. 2d 18 (1979); Griffin v. State, 239 Ark. 431, 389 S.W. 2d 900 (1965).
The difficulty we have with appellant’s argument is that there was no objection or protest at all made to the trial court’s remarks and, consequently, we cannot deal with it on appeal. Hulsey v. State, 261 Ark. 449, 549 S.W. 2d 73 (1977); Neal v. State, 259 Ark. 27, 531 S.W. 2d 17 (1975); Nash v. State, 248 Ark. 323, 451 S.W. 2d 869 (1970).
Affirmed.
Purtle, J., not participating. | [
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Frank Holt, Justice.
This case involves the validity of the transfer of 31 students by the Independence County School Board, pursuant to their parents’ petition, from the Cord-Charlotte School District No. 8 to the adjoining Newark School District No. 33. Both districts are in that county.
It appears that in 1951, the Cord area and Charlotte area were consolidated into one district. In 1972, after a study of the facilities in the district, the State Board of Education recommended, inter alia, that the facilities (the elementary school at Cord and the high school at Charlotte) be consolidated or located at one site. In 1979 a bond issue was narrowly approved in a heated election for the purpose of financing construction of a new elementary facility at Charlotte. The elementary school at Cord would be closed and all children in the district would attend school at Charlotte. Subsequently some parents of the Cord area enrolled their childen in the contiguous Newark District with its approval. Thereupon, Cord-Charlotte filed an action in chancery court to enjoin the Newark District from accepting these students. During the pendency of that action, the students’ parents petitioned the County School Board for transfer approval, asserting their concern about the quality of education their children were afforded at Cord-Charlotte and also the existence of ill will between the students’ parents, the superintendent and the board members of the Cord-Charlotte District, A hearing was held and the board approved the transfer. The chancellor then ruled that, although the students’ initial attendance was illegal, the action of the school board constituted a legal transfer and could only be challenged by appeal to the circuit court. Appellant appealed the board’s decision to the circuit court pursuant to Ark. Stat. Ann. § 80-236 (Repl. 1980). That court, after considering the transcript and exhibits from the board’s proceeding and hearing additional evidence, upheld the actions of the school board. This appeal results.
The appellant asserts several errors concerning procedural matters before the county board and, also, questions the sufficiency of the evidence to support the board’s decision. Primarily, it is insisted that the board, in considering the educational facilities were better in the adjoining Newark District failed to consider the total impact upon the losing district; i.e., the loss of 31 students or 13% of the district’s total enrollment (241), which resulted in the loss of about $25,000 in state and federal funds. This en masse transfer, consequently, would have a ruinous effect upon the district’s finances and, thus, adversely affect the quality of the educational program for the balance of the students in the district. However, we find it unnecessary to discuss these arguments since we agree with appellant’s additional contention that the transfer is impermissible without the consent of the sending district.
Ark. Stat. Ann. § 80-1517 (Repl. 1980) provides in pertinent part:
The county board of education shall have power, upon the petition of any person residing in any particular school districts, to transfer the children or wards of such persons to a district in the same county, or to a district in an adjoining county for school purposes.
Ark. Stat. Ann. § 80-1518 (Repl. 1980) provides:
From and after the passage of this act [March 3, 1937] no county court [county board of education ] shall make an order transferring any school child or children from one [1] district to another until and unless the consent of the Board of Directors of the district to where such child or children are sought to be transferred has been secured in writing, such written consent to be filed in the office of the County Clerk of the county from which such child or children are to be transferred.
Ark. Stat. Ann. § 80-1528 (Repl. 1980) provides:
A local Board of Education may, by mutual agreement, provide for the admission to any school of pupils residing in adjoining districts whether in the same or different counties, and for transfer of school funds or other payments by one [1] Board to another for or on account of such attendance.
In Bell v. Howard County Training School, 236 Ark. 742, 368 S.W. 2d 266 (1963), we construed these statutes. Students there had previously attended the Howard County Training School District #38, lying in Howard and Sevier Counties, which was administered by the Howard County School Board. The students, residents of that district, had been admitted to a school district in Sevier County with the approval of that district board and the Sevier County Board of Education. The Howard County Board and the district board refused to consent to the transfer of the students on the theory that consent was necessary. In agreeing with this contention, after discussing the statutes relied upon here by appellant, we said:
While we concur that a child cannot be transferred to another district without the consent of the Board of Directors of the receiving district, we do not agree that the paramount authority rests with the Board of the receiving district; rather, a valid transfer requires the ‘consent’ of both the ‘sender’ and the ‘receiver.’ The transfer must be made by the County Board of Education in which the ‘sending’ district is located (80-1517), or in the case of adjoining districts, by mutual agreement between the two local Boards of Education ('sending' and 'receiving). (Italics supplied.)
Appellees argue that a close reading of Bell indicates that §§ 80-1517 and 80-1628 operate independently of each other and do not constitute a limitation on one or the other. Further, that if approval of the sending district is required in every case, then § 80-1517 would be rendered superfluous. After careful study, we are of the view that appellant correctly relies upon the interpretation of Bell as requiring the “sending” district’s approval. Here the efforts of the county board to resolve the problem by agreement were unsuccessful and the “sending” district has steadfastly refused the transfer ap proval. We, also, note the record reflects the board had before it the long-standing policy of the State Department of Education, based upon Bell, as interpreted by the Attorney General, that in case of a transfer of students from adjoining districts, approval is required by both the “sending” and “receiving” district.
Reversed.
Fogleman, C.J., and Stroud, J., dissent.
Ark. Star. Ann. § 80-213 [Acts 1941, No. 327, § 11, p. 838] | [
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Jack Holt, Jr., Chief Justice.
The focus in this appeal is whether fraudulent concealment was proven by the Estate of J.P. Stoltz (“Estate”) in order to toll the statute of limitations on its claim against the appellant, First Pyramid Life Insurance. We hold that the limitations period was not tolled. Thus, we reverse the finding of the trial court.
The facts leading up to this controversy are as follows. In 1975, J.P. Stoltz applied for life insurance with the appellant, First Pyramid Life Insurance (“First Pyramid”). Since Mr. Stoltz had health problems, he was heavily rated for insurance. First Pyramid felt he was a good candidate for a policy called a Flex 79 Trust. The advantage of this kind of policy is that it allows employers to provide employees with life insurance while making the premiums tax deductible. Through this, Stoltz could have his company, Polyvend, Inc., provide him with life insurance virtually tax free. In order to receive these tax benefits, however, the owner of the policy had to be someone other than the insured. Another problem was that at the time of Mr. Stoltz’s application, Arkansas had a $50,000 statutory ceiling on the maximum life insurance that could be purchased by an employer for an employee.
To overcome this ceiling, First Pyramid arranged for the Trust to be based in Oklahoma. In this manner, Stoltz could purchase two policies totalling $2 million — one $1,950,000 policy and one $50,000 policy. Flex 79 was made the owner of the policies. The insurance application, completed by Stoltz on December 18, 1975, designated Stoltz as the insured, Flex 79 Trustee as the owners and Mr. Stoltz’s estate as the beneficiaries.
In March 1976 Mr. Stoltz sought to change the beneficiary and ownership. In the required change of beneficiary forms, he named his son, James Stephen Stoltz (“Steve”), as beneficiary of both policies and owner of the larger policy. A First Pyramid employee, Elizabeth Oswald, accepted these forms. Yet, these forms were never signed by the policies’ owner of record, the Flex 79 Trustee. Ms. Oswald’s supervisor, Ron Mason, sent a memo in August 1976 advising Mr. Stoltz’s insurance agent that the attempted policy modifications were ineffective without the Trustee’s signature and that the policy should be returned to have the invalid forms removed. It is not disputed that Mr. Stoltz did nothing further after August 1976 to change the beneficiary from the estate to his son and that on his balance sheet dated October 5, 1977 (two months prior to his death), he listed the $2 million insurance as an asset and indicated that his estate was the beneficiary. Mr. Stoltz’s signature is on this balance sheet.
Mr. Stoltz died on December 18,1977. Only his son, Steve, claimed the policy proceeds. Prior to paying the claim, First Pyramid consulted their attorney, Allan Horne. Mr. Horne concluded in a memorandum (the “Horne memorandum”) that Steve Stoltz was the legal beneficiary but recommended that the proceeds be interpleaded because of uncertainties in file documentation, including the lack of the Oklahoma trustee’s signature on the change of beneficiary form completed by Mr. Stoltz. At an executive meeting with First Pyramid approximately a week later, Mr. Horne concurred that paying the son without interpleader was “the best course.” First Pyramid paid Steve Stoltz the entire proceeds of the policies within twenty-one days of his father’s death.
Subsequently, there was a dispute with the Internal Revenue Service regarding whether the face value of the policies paid to Steve Stoltz was includable in the decedent’s estate. This dispute arose because of a tax provision that dictates that if a gift is made within three years of a decedent’s death, the policy is presumed to be in contemplation of death. That gift is put back into the estate for estate tax purposes. The Estate through its attorneys, Friday, Eldredge and Clark, attempted to rebut this presumption. According to Mr. Saxton, the Friday firm attorney who handled the challenge, the procedure for challenging this is to include the policy proceeds in the taxable estate and then pay the tax and file a claim for a refund.
In pursuing this refund, Mr. Saxton requested and received First Pyramid Life’s file on the insurance policies at issue. In a June 27, 1983, letter to Steve Stoltz, administrator of the Stoltz estate and recipient of the insurance policy proceeds, Mr. Saxton alluded to the question of change of beneficiary raised by First Pyramid in 1977 and the Horne memorandum concerning change of beneficiary.
Eleven years after J.P. Stoltz’s death, representatives of the Estate brought this action against First Pyramid for negligence, breach of contract, bad faith as well as fraudulent concealment of the proper beneficiaries of the policies.
At trial, a jury found for the plaintiffs and awarded the estate $2 million in compensatory damages and $1 million in punitive damages. The court also assessed attorney’s fees for $666,666.67. The court refused to award the twelve percent statutory penalty for unpaid insurance claims.
STATUTE OF LIMITATIONS
First Pyramid Life contends that because the action is barred by the statute of limitations, the trial court erred in denying their motion for judgment notwithstanding the verdict. As we find no evidence of fraudulent concealment on the part of First Pyramid which would toll the statute of limitations, it necessarily follows that the action is barred, and the judgment must be reversed.
Representatives of J.P. Stoltz’s estate did not bring this action until April 20, 1989, more than eleven years after the payment of the insurance proceeds to Steve Stoltz and J.P. Stoltz’s death.
The statute of limitations on actions to recover on a life insurance policy is five years from the accrual of the cause of action. Ark. Code Ann. § 23-79-202 (1992); 16-56-111 (1987). The limitations period on torts actions is three years. Ark. Code Ann. § 16-56-105 (1987). This court has held that the action accrues upon the death of the insured:
It is a rule of universal application in the law of insurance that a cause of action arises in favor of the designated beneficiary in a policy of insurance against the insurer upon the death of the insured unless by the terms of the contract the accrual of such cause of action is delayed or some local statute fixes a different time.
United Mutual Life Ins. Co. v. Bransford, 190 Ark. 783, 81 S.W.2d 17 (1935). See also 20A John Alan Appleman, Insurance Law and Practice § 11585 (1980).
Representatives of the estate contend that the statute of limitations on this action was tolled by First Pyramid’s allegedly fraudulent concealment of the controversy. In response, First Pyramid denies concealment and asserts that the estate knew or should have known of the change in beneficiaries on the policies.
When the running of the limitations period is raised as a defense, the defendant has the burden of affirmatively pleading this defense. However, once it is clear from the face of the complaint that the action is barred by the applicable limitations period, the burden shifts to the plaintiff to prove by a preponder anee of the evidence that the statute of limitations was in fact tolled. Cleveland v. Gravel Ridge Sanitary Sewer Imp. Dist. No. 213, 274 Ark. 330, 625 S.W.2d 446 (1981); Rasmussen v. Reid, 255 Ark. 1064, 505 S.W.2d 222 (1974); Alston v. Bitely, 252 Ark. 79, 477 S.W.2d 446 (1972).
During the preliminary phases of the lawsuit below, the trial court made the following findings of fact and conclusions of law:
The cause [of] action here asserted against the First Pyramid Life Insurance Company is the estate lost the insurance benefits by reason of the Statute of Limitations and the Company was liable in tort, a bad faith action, on the event of the payment of the proceeds.
To avoid the loss of those causes of action, the plaintiff must prove either the defendant insurance company by its overt acts caused the legal right to be hidden and thereby becomes time barred; or there existed a specific legal relationship between the parties that in and of itself obligated an overt discloser [sic] of the existence of those claims. An insurer/beneficiary relationship does not seem to create that legal obligation; however on the claim of a factual cover-up, the plaintiff should have its day in Court.
(Emphasis added.)
We agree with this analysis of the issues; however, we hold that the trial court should have granted First Pyramid’s motion for a judgment notwithstanding the verdict because the action was barred by the statute of limitations.
There is simply no evidence of record that First Pyramid attempted to fraudulently conceal, “cover-up,” or misrepresent to the estate the problem with determining the proper beneficiary of J.P. Stoltz’s insurance policy. Even if there was evidence of fraud on the part of First Pyramid, and there is none, the statute of limitations would still have run on this claim. “Fraud does suspend the running of the statute of limitations, and the suspension remained in effect until the party having the cause of the action discovers the fraud or should have discovered it by the exercise of reasonable diligence.” (Emphasis in original; citations omitted.) Talbot v. Jansen, 294 Ark. 537, 744 S.W.2d 723 (1988). See also Walters v. Lewis, 276 Ark. 286, 634 S.W.2d 129 (1982); Carter v. Zachary, 243 Ark. 104, 418 S.W.2d 787 (1967); Williams v. Purdy, 223 Ark. 275, 265 S.W.2d 534 (1954).
We have said that the “classic language on this point in Arkansas” is:
No mere ignorance on the part of the plaintiff of his rights, nor the mere silence of one who is under no obligation to speak, will prevent the statute bar. There must be some positive act of fraud, something so furtively, planned and secretly executed as to keep the plaintiffs cause of action concealed or perpetrated in a way that it conceals itself. And if the plaintiff, by reasonable diligence, might have detected the fraud he is presumed to have had reasonable knowledge of it.
Wilson v. GECAL, 311 Ark. 84, 841 S.W.2d 619 (1992) (citations omitted).
As early as 1976, twelve years before the filing of this law suit, two of the complaining representatives of the estate, J.P. Stoltz’s sister and brother-in-law, Ruth Fields and John R. Smith, were aware that J.P. Stoltz had taken out $2 million in life insurance and named his estate as beneficiary. Further, J.P. Stoltz’s signed a 1976 balance sheet listed the $2 million insurance as an asset and named the estate as beneficiary. This balance sheet was made available to the beneficiaries. Armed with this information, the beneficiaries of the estate were on notice that the estate was potentially a beneficiary of the insurance policies and by the exercise of reasonable diligence, the parties could have discovered information relating to the policies and the designated beneficiaries.
There is no evidence that the beneficiaries of the estate ever requested First Pyramid’s files; nor is there evidence indicating that First Pyramid tried to hide the potential problem with the insurance policies from the beneficiaries. In 1983 the attorneys who represented both the estate and Steve Stoltz requested access to the insurance company’s files. First Pyramid readily turned them over. A like inquiry of First Pyramid would, in all probably, have made all files on J.P. Stoltz available to the beneficiaries as well.
The beneficiarys’ ignorance of their rights does not prevent the operation of the statute of limitations. The statute is tolled only when the ignorance is produced by affirmative and fraudulent acts of concealment. Atlanta Exploration Inc. v. Ethyl Corp., 301 Ark. 331, 784 S.W.2d 150 (1990). The acts of concealment or fraud alleged must have been committed by those invoking the benefit of the statute of limitations. Dupree v. Twin City Bank, 300 Ark. 188, 777 S.W.2d 859 (1989).
The estate obviously had notice of the original beneficiary of the policies; the fact that the beneficiaries of the estate failed-to act or did not know to act on this knowledge does not toll the statute of limitations. As there was an absence of fraud or concealment on the part of First Pyramid, it was entitled to the benefit of the statute of limitations.
On cross-appeal, the appellee, Estate of J.P. Stoltz, complains that the trial court erred in denying the twelve percent statutory penalty provided by Ark. Code Ann. § 23-79-208 (1992) and prejudgment interest. Prejudgment interest is based upon an “improperly disallowed insurance claim.” However, since we reverse the trial court’s decision to award the proceeds of the policy to the estate, the Estate’s argument for a statutory penalty and prejudgment interest has no basis.
Reversed on appeal; affirmed on cross-appeal.
Dudley, J., not participating. | [
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Per Curiam.
Mildred “Baby” Simmons petitions the court for a rule on the clerk. The clerk refused to file her record because it was not tendered within the time set by Ark. R. App. P. 5. She contends that her attorney had open heart surgery, and such surgery constitutes sufficient “unavoidable casualty” for us to grant the rule on the clerk. The argument is without merit.
The trial court signed the final order on February 28, 1992, and it was entered on March 9, 1991. An extension of time was granted by the trial court, but the record was due in the clerk’s office no later than seven months from the entry of the final judgment. Ark. R. App. P. 5(b). A trial court cannot extend the time for the filing of the record to a date more than seven months from the date of the entry of the judgment, except in event of a postjudgment motion under Rule 4(b), and in that case it is seven months “from the date on which a timely post judgment motion under Rule 4(b) is deemed to have been disposed of.” Here, there was no postjudgment motion. The petitioner had only seven months from the entry of the final judgment. When an appellant seeks an extension of time beyond the seven months to file his or her record, his or her remedy is to file a partial record in the supreme court and seek an extension for a compelling reason, such as an unavoidable casualty. Yent v. State, 279 Ark. 268, 650 S.W.2d 577 (1983). That was not done in this case, and we decline to grant the motion. We also note that the petitioner’s attorney had his open heart surgery in April of 1992, and the deadline was not until October of 1992.
In her motion the petitioner cites the case of Pentron Corp. v. Delta Steel & Construction Co., 286 Ark. 91, 689 S.W.2d 539 (1985), and while that case is not applicable to the case at bar because it deals with the date a record is due in the clerk’s office after a posttrial motion, we take this opportunity to correct a misstatement in one of the sentences in Pentron. There, we stated that after a posttrial motion, the appellant has seven months “from the notice of appeal” to file the record in the clerk’s office. The opinion should have stated that the appellant has seven months “from the date on which a timely postjudgment motion under Rule 4(b) is deemed to have been disposed of under Rule 4 (c).” See Ark. R. App. P. 5(b).
Motion denied. | [
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Steele Hays, Justice.
Appellant, Randall Wilson, was convicted at trial below of capital murder in the death of Sharon Taylor and was sentenced to life in prison without parole.
The evidence in this case reveals that the body of Sharon Taylor was found beaten and strangled in a barn near Lowell, Arkansas, June 2, 1979- Medical testimony in the case was uncertain as to which of the two injuries was the actual cause of death, either being sufficient.
The body was found partially nude, the hands and feet of the victim having been bound with baling twine or rope.
Medical evidence established that the victim had had recent sexual intercourse, with marks found on the body consis tent with forcible intercourse.
Appellant testified that he had driven his car to the Taylor residence in the early morning hours of June 2, 1979, and that the deceased voluntarily left with him in his car. Appellant testified he drove the two of them to the barn.
Appellant admitted thát he killed the deceased by striking her with a rock. Appellant denied that he had strangled the victim and denied ever having sexual intercourse with her.
Appellant alleged that he killed Sharon Taylor because she was attempting to blackmail him and threatening to testify against him in a child custody hearing between Wilson and his former wife.
Appellant denied he had kidnapped the' deceased from her home. He alleged that Sharon Taylor had voluntarily left her home with him, leaving her two small children alone in the house asleep.
At the conclusion of all the testimony, the trial court instructed the jury on capital murder, murder in the first degree, murder in the second degree, and manslaughter. The jury retired for deliberations and returned a verdict of guilty of capital murder.
The court then received evidence of aggravating and mitigating circumstances, and the jury again retired to consider: the punishment, returning a sentence of life in prison without parole.
Appellant brings this appeal asserting that the statutes involved, Ark. Stat. Ann. §§ 41-1501 and 41-1502, are unconstitutional in their application to the present case. In support of such contention, appellant makes several arguments which we discuss separately.
First, appellant argues that the overlapping nature of § 4l-1501(l)(a) and § 41-1502(l)(a) renders the statutes unconstitutional since they would allow for de facto sentencing in an arbitrary and capricious manner. In support of this argument, appellant cites this court to Roberts v. Louisiana, 428 U.S. 325 (1976). We disagree with the argument.
Arkansas’ capital murder statute, Ark. Stat. Ann. § 41-1501, provides in pertinent part:
(1) A person commits capital murder if: (a) acting alone or with one or more other persons, he commits or attempts to commit rape, kidnapping, arson, vehicular piracy, Robbery, burglary, or escape in the first degree, and in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life; ....
Arkansas’ first degree murder statute, Ark. Stat. Ann. § 41-1502, provides in pertinent part:
(1) A person, commits murder in the first degree if: (a) acting alone or with one or more persons, he commits or attempts to commit a felony, and in the course of and in the furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life.
In Cromwell v. State, 269 Ark. 104, 598 S.W. 2d 733 (1980), we noted that the mere overlapping of the statutory provisions did not render the statute unconstitutional:
We are unwilling to say that the reference in Section 4l-1502(l)(a) to ‘a felony’ was meant to exclude the seven felonies specified in the preceding section . . . . In any event, we find no constitutional infirmity in the overlapping of the two sections, because there is no impermissible uncertainty in the definition of the offenses. Cromwell, at 107-108
In Roberts v. Louisiana, 428 U.S. 325 (1976), the Supreme Court struck down Louisiana’s mandatory death penalty for first degree murder. Under the Louisiana statutes, the jury was compelled to return a verdict of either guilty, guilty of second degree murder, guilty of manslaughter, or not guilty. The Court typified' this statutory scheme as one which “invites the jurors to disregard their baths arid choose a verdict for a lesser offense whenever they feel the death penalty inappropriate.”
In striking down the Louisiana statute, the Court said:
There is an element of capriciousness in making the jurors’ power to avoid the death penalty dependent on their willingness to accept this invitation to disregard the trial judge’s instructions. Roberts, at 335.
Unlike the statutory scheme in Louisiana, the Arkansas statutes do not make avoidance of the death penalty dependent on the jury’s disregard of the law. In the event the jury finds the defendant guilty of capital murder, as in the present case, the jury is vested with the power to sentence the defendant to either the death penalty or life imprisonment without parole, as here. Additionally, since the capital murder statute and the first degree murder statute overlap in circumstances such as the present case, the jury may refuse consideration of the death penalty by returning a guilty verdict as to the charge of murder in the first degree but not as to the capital murder.
Second, the appellant argues that the application of the capital murder statute precludes consideration of the lesser offense of murder in the first degree. The argument is without merit.
As recently as Brewer v. State, 271 Ark. 254, 608 S.W. 2d 363 (1980), we held in the circumstances of that case that it was reversible error to fail to instruct the jury as to murder in the first degree where defendant is charged with capital murder.
In the present case, the trial judge instructed the jury as to capital felony murder, murder in the first degree, murder in the second degree, and manslaughter. We find no error.
Third, the appellant argues the application of the capital murder statute to the present facts relieves the state of the burden of proving each element necessary to constitute a higher degree of culpability than the first degree murder statute. Here the appellant also argues that the classification of crimes is unreasonable.
However, the constitutional protection afforded the defendant is a guarantee against the arbitrary and capricious isolation of one group of offenders for more severe punishment than that punishment given some other group for the same offense. Gregg v. Georgia, 428 U.S. 153 (1976). The classification of the crimes themselves lies within the sound discretion of the legislature.
Further, we find nothing in either statute which relieves the state of the absolute burden of proving each element of the offense beyond a reasonable doubt.
Fourth, the appellant contends that the sentence imposed, life without parole, is excessive and disproportionate to the crime and therefore constitutes cruel and unusual punishment prohibited by the Eighth Amendment.
No contention is made here that the sentencing was not in compliance with the procedures of Ark. Stat. Ann. § 14-1301 et seq. We have long held that a sentence within the statutory limits is not cruel and unusual punishment. Duncan v. State, 267 Ark. 41 (1979). And, in fact, this court has specifically held that life without parole is not cruel and unusual punishment for capital murder. Dyas v. State, 260 Ark. 303, 539 S.W. 2d 251 (1976); and McCree v. State, 266 Ark. 465, 585 S.W. 2d 938 (1979).
Finally, the appellant argues that the distinction be-between capital murder and murder in the first degree lies in the presence of aggravating circumstances, and that in order to sustain a conviction for capital murder there must be a finding of some aggravating circumstance. This argument is wholly without merit.
Nothing in either of §§ 41-1501 or 41-1502 makes aggravating circumstances an element of the offenses. The current Criminal Code took several years to. produce and was adopted by the General Assembly only after careful consideration. We find nothing in the legislative history of the statutes or the Commentary to the sections in question to indicate that the intent was to distinguish between capital felony murder and murder in the first degree according to the presence or absence of aggravating circumstances.
Aggravating circumstances are not an element of capital murder as defined in Ark. Stat. Ann. § 41-1501, and the presence of aggravating circumstances is not necessary to support a conviction under that section.
The presence of aggravating or mitigating circumstances is relevant only to the determination of sentence under Ark. Stat. Ann. § 41-1301 et seq., as was done here.
We have also examined the record for all other legal errors, as is our practice in cases of like punishment, and finding none prejudicial, affirm the conviction and punishment.
Affirmed.
Supplemental Opinion on Rehearing delivered March 9, 1981
Steele Hays, Justice.
In our original opinion in this case, Wilson v. State, 271 Ark. 682, 611 S.W. 2d 739 (1981), we rejected appellant’s argument that the Arkansas capital murder statute, Ark. Stat. Ann. § 41-1501 was unconstitutional as applied to the appellant. On this rehearing, we again affirm the conviction but find it necessary to issue this supplemental opinion to clarify language which appellant cites as confusing. The appellant has reargued that the overlapping nature of Ark. Stat. Ann. §§ 41-1501 and 41-1502(a) renders the statutes unconstitutional under Roberts v. Louisiana, 428 U.S. 325 (1976) and Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65 L.Ed. 2d 232 (1980), insisting that our original opinion recognizes the validity of the argument without disposing of it.
In a line of cases beginning with Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 LEd. 2d 346 (1972), the Supreme Court began a careful scrutiny of the constitutionality of the application of the death penalty. In Furman, the Court struck down a Georgia statute which allowed the jury complete discretion in imposing capital punishment. Such discretion led to “wanton ánd freakish” imposition of the death penalty in violation of the Eighth Amendment. See, Stewart, J. concurring, at 310.
Following Furman, the Court made it clear that the constitutional protection afforded an accused is a guarantee against the arbitrary and capricious isolation of one group of offenders for punishment more severe than that given another group of offenders. Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976). In Gregg, as in Furman, the Court was passing on the constitutionality of how the sentence was determined. In Beck, the protections afforded under Furman and Gregg were extended from the sentencing determination to the guilt determination.
In examining the Arkansas statutes, Ark. Stat. Ann. §§ 41-1501 and 41-1502(a), we have interpreted the statutes as intentionally overlapping, while holding that such overlapping does not render them unconstitutional. Cromwell v. State, 269 Ark. 104, 598 S.W. 2d 733 (1980). We adhere to that view and point out that neither Beck nor Roberts, nor any authority given us by appellant, holds that overlapping alone creates a constitutional deficiency.
Appellant’s petition for rehearing relies heavily on Beck v. Alabama and Roberts v. Louisiana, supra. These cases involve the scrutiny of state statutes enacted in apparent response to Furman. Both defendants were given the death penalty. In Beck, Alabama law made felony murder a lesser included offense to the capital crime of robbery-intentional killing. In Alabama, the trial judge is prohibited from giving the jury the option of convicting the defendant of a lesser included offense and, thus, a jury must either convict the accused of a capital crime, in which case it must impose the death penalty, or acquit him. If the verdict is guilty, the trial judge then conducts a hearing to consider aggravating/mitigating circumstances and he may then impose the death sentence or life imprisonment. In Beck, the jury imposed a sentence of death and the trial judge refused to overturn the sentence. The errancy of Alabama’s statutory scheme, according to Beck, was in the apparent mandatory nature of the death penalty and the unavailabilty of the lesser included offense as a “third option” to the jury. The court held that the absence of the opportunity to convict the defendant of a lesser included offense deprived the defendant of the full benefit of the reasonable doubt standard.
In Roberts, the statutory procedure of Louisiana in capital cases was examined. Under Louisiana law, a verdict of guilty in a first degree murder charge is dependent upon a finding by the jury that the defendant had a specific intent to kill and was engaged in one of several felonies, in this case, armed robbery. The death penalty is mandatory on such a verdict. The jury is always instructed as to lesser offenses, irrespective of whether the evidence supports a lesser verdict. The court compared the Louisiana scheme to that of North Carolina, invalidated on the same day (Woodson v. North Carolina, 428 U.S. 289), declaring it unconstitutional in that it “plainly invited the jurors to disregard their oaths and choose a verdict for a lesser offense whenever they feel that the death penalty is inappropriate.” The errancy in this statutory scheme, as the Court found, is that merely by determining that both conditions existed, i.e., a specific intent to kill and armed robbery, the jury was compelled to return a verdict of death. In both instances, any qualification of the sentence or recommendation of mercy by the jury is without effect.
We hardly need point out, but do so again, that our statutes are vastly different from those of Louisiana and Alabama and are not tainted by the same flaws. The jury is free to convict on capital felony murder or of lesser included offenses. Furthermore, the jury is not compelled to impose death even if it finds the defendant guilty of the greater offense, capital felony murder, as it is still free to sentence the defendant to life without parole after considering the mitigating/aggravating circumstances. .It is true that there is some overlapping in our two statutes but as pointed out in Cromwell, it is impossible to entirely avoid the use of general language in the definition of certain offenses and, further more, the actual wording of the statute may have been deliberate to lighten the possible punishment that might be imposed. We conclude that the overlapping aspect of our statutes does not bring them within the shadow of either Beck or Roberts.
Rehearing denied. | [
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Darrell Hickman, Justice.
The question to us is the enforceability of a restrictive covenant in a deed which provides that no mobile homes may be placed on the property. Lester Cook, the appellee, placed a mobile home on his tract of land knowing that his deed contained a restriction against mobile homes. The developer who sold the tract to Cook sued to have the mobile home removed. The chancellor held that because the developer had in one instance granted a tract owner an exception to another covenant, the restriction against mobile homes could not be enforced against Cook. We find the chancellor wrong and reverse the decree.
The appellants, Inell Jones and his wife, bought a six hundred acre tract of land in Polk County to develop into residential sites. The tract was divided by a county road. The land south of the road was to be used strictly for residences; the area north of the road was to be unrestricted. Before this case came to trial fourteen tracts had been sold. The development scheme, according to the evidence, was being carried out by restrictions in each deed. The Joneses had filed no plat with the county recorder as provided for in Ark. Stat. Ann. § 50-427. The test for a general plan was stated in Sedberry v. Parsons, 232 N.C. 707, 62 S.E. 2d 88 (1950). There the court said:
The primary test of the existence of a general plan for the development or improvement of a tract of land divided into a number of lots is whether substantially common restrictions apply to all lots of like character or similarly situated.
It is one of two methods approved in Arkansas. Moore v. Adams, 200 Ark. 810, 141 S.W. 2d 46 (1940).
With one exception all of the deeds in the development contained this restriction: No mobile homes and/or commercial buildings shall be placed on the property. A deed to Agnes Lott varied the restrictive clause by reading: “That no mobile homes or commercial buildings are to be on said land except for a tomato house.” This exception related to the restriction on commercial buildings, but not to mobile homes.
At trial, Cook did not defend on the basis of the exception granted to Agnes Lott, but simply stated that he had no notice of the restrictions in his own deed and had expended over $2,000 on the lot before he learned of the restrictions. In addition he contended that his was not a true mobile home and that the developer had not filed a plat as required by Ark. Stat. Ann. § 50-427.
The chancellor found that the developer did have a general plan for development but held that because the general plan was violated by the deed to Lott the restriction could not be enforced against Cook, citing Moore v. Adams, supra, as authority. That case is easily distinguished. The subdivision in Moore was found to have “an entire absence of any general plan in the restrictions . . .” of the subdivision. The court noted that some deeds in Moore had no restrictions, others had restrictions allowing only “residences,” and still others had limitations on cost of “dwellings.” Moore v. Adams, supra, actually supports the appellants’ position. It points out that the breach of the convenant by the developer not only must be substantial but also must be a breach of the same restriction. In West v. Anthony, 259 Ark. 474, 533 S.W. 2d 518 (1976), we upheld the enforcement of a restrictive covenant where an unplatted subdivision was involved even though some of the deeds contained no restrictions at all. In Leffingwell v. Glendenning, 218 Ark. 767, 238 S.W. 2d 942 (1951), we upheld a restriction that forced a buyer to move a wall.
Our reasons for finding no substantial breach are supported by the testimony. Jones testified that Agnes Lott bought two tracts, one south of the road in the restricted area and one north of the road in an unrestricted area. Testimony indicated that it was never intended that the exception be granted for a “tomato house” south of the road. While Agnes Lott did not testify, it was conceded that her lots were at the “end of the road” about a fourth of a mile from Cook’s tract. In Brigham v. Mulock Co., 74 N.J. Eq. 287, 70 Atl. 185 (1908), the court noted that: “[T]he owner of a single lot may have no concern whatever in a violation of the covenants on a part of the tract distant from his lot.”
The fact that other violations have occurred does not always constitute acquiescence or waiver of the restrictions. This was shown in Titus v. Kopacz, 359 Mich. 671, 103 N.W. 2d 344 (1960), where the court found that:
In respect to violations in the subdivision, the plaintiffs showed by convincing testimony that there are 14 violations of building restrictions on the 163 one-hundred foot lots in the subdivision with but one of the violations on Beverly boulevard where the individual plaintiffs reside. This the court finds to be a fact. The court further finds that such a proportionately small number of violations is not subversive of the original plan of development in relation to the set back area and does not constitute a waiver of the restrictions which would prevent other property owners from enforcing them. Corey [Carey] v. Lauhoff, 301 Mich. 168 [3 N.W. 2d 67]. Furthermore, the fact that other provisions of the original restrictive covenants may have been violated does not vitiate those covenants that have been maintained under a general plan of development. Wilcox v. Mueller, 250 Mich. 167 [229 N.W. 600].
The “tomato house” that was authorized in Agnes Lott’s deed had not been built at the time of this suit. Cook did not even know that the exception had been granted and it was not the basis of his defense. Cook’s defense was that he did not know about the restriction in his own deed when he purchased the property. The chancellor found that Cook knew of the restriction when he purchased the mobile home and placed the home on his property; Cook did not deny that fact. Cook said he was not told of the restriction before he got his deed in January, 1978, but first learned of the restriction in May, 1978. He admitted that he did not intend to put a mobile home on the lot when he bought the land but intended to put a commercial log house on it. However, Cook stated that he was “burned up” when he saw the restriction and he did not think the restriction would stand up. He said he felt “a man owns his land outright and ought to be able to do whatever he sees fit... ”
The chancellor’s misgivings, expressed in oral remarks ' at the conclusion of the case, were directed at this type of development where there was no platted subdivision and where there were no restrictions in a Bill of Assurance filed pursuant to Ark. Stat. Ann. § 50-427. Also, this development was not complete and would not be complete until all the deeds were delivered.
We have the same misgivings about such a development and the manner in which the restrictions are imposed in each deed. But such restrictions have been found legal where a general plan exists. Moore v. Adams, supra. We must deal with the case before us, not speculating on the future of the development. There are remedies available to enforce such a plan.
The evidence in the present case was decidedly against Cook since it indicated that Cook simply did not want to abide by the restrictions. He knowingly violated the contract without any legal or equitable excuse. Consequently, he must suffer the consequences.
The decree is reversed and the cause remanded for proceedings consistent with this opinion.
Reversed and remanded. | [
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George Rose Smith, Justice.
The parties to this divorce case owned two pieces of land as tenants by the entirety: a 10-acre tract on which their home was built and an unimproved 6-acre tract. In the divorce decree the chancellor awarded the larger tract to the wife and the smaller tract to the husband, ordered the parties to execute quitclaim deeds to carry the decree into effect, and equalized the property division by giving the husband a larger share of the personalty-
For reversal the husband argues that the chancellor should not have included the lands in an attempt to divide all the parties’ property, both real and personal, in an equitable manner pursuant to Ark. Stat. Ann. § 34-1214 (Supp. 1979). Instead, it is argued the real property should have been divid ed between the parties, as tenants in common, pursuant to Section 34-1215 (Supp. 1979). This theory of the case was not presented in any manner in the trial court. To the contrary, both parties’ proof was directed toward showing how all the property cc^uld best be divided. The decree was responsive to that proof. We do not permit a party, when the decree is not to his liking, to raise an entirely new theory of the case on appeal.
It is also argued that the chancellor erred in finding that an equal division of the property would be inequitable. As we read the record, however, the chancellor made no such finding Quite the opposite, he distributed a total of 15 enumerated assets, including the two tracts of land, and concluded that according to his valuation the wife received property worth $35,500.00 .and the husband received property worth $35,-665-39. We regard the division as fair; certainly we cannot say that the decree is clearly erroneous. Since an equal division was made, there was no necessity for the chancellor to state his reasons for not so dividing the property, under § 24-1214 (A) (1). Moreover, there was no request for such a statement nor any objection to its omission.
Affirmed. | [
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Frank Holt, Justice.
Appellant was convicted by a jury of aggravated robbery and sentenced to 15 years imprisonment.
Appellant first asserts the trial court erred in not making a pretrial determination of his fitness to proceed to trial. Although the court held a pretrial hearing on appellant’s motion contesting his competency to stand trial, at its conclusion the court stated he was taking the motion under advisement, the defense counsel could renew it at “an appropriate time, whenever you think it is necessary in the trial”, and he would rule on it. There was no objection to this procedure. At the close of all the evidence before the jury, the appellant renewed his motion for a ruling as to appellant’s fitness to stand trial, which the court denied.
Ark. Stat. Ann. § 41-606 (Repl. 197) provides:
If the defendant’s fitness to proceed becomes an issue, it shall be determined by the court. If neither party contests the finding of the report filed pursuant to section 605 [§ 41-605], the court may make the determination on the basis of the report. If the finding is contested, the court shall hold a hearing on the issue.
The proper procedure is for the trial court to make a decision at the time the issue is raised. Westbrook v. State, 265 Ark. 736, 580 S.W. 2d 702 (1979); and Gruzen v. State, 267 Ark. 380, 591 S.W. 2d 342 (1979). These cases hold that it is the duty of the trial court to make a determination of a defendant’s fitness to proceed to trial when it becomes an issue, and it is reversible error to leave the matter for the jury’s determination. In those cases the court made no ruling and left the issue to the jury to decide. Here, without objection, the court deferred the requested ruling on appellant’s fitness to proceed to trial and later did make an independent one when appellant’s counsel renewed his motion. In the circumstances, appellant has not demonstrated reversible error.
Appellant next contends that the trial court was wrong in failing to find him incompetent to stand trial. It appears appellant had been committed to the Missouri State Hospital in 1975 and in 1978 he left there without authorizaion. He came to Arkansas and shortly thereafter committed the alleged offense. Following formal charges, he was committed to our Arkansas State Hospital for a mental examination based upon his affirmative defense of insanity. The officials there advised the court that he was emotionally ill, suffering from schizophrenia, paranoid type. Two months later, the state hospital rendered an additional opinion to the effect that appellant had recovered from his previously diagnosed mental illness and was fit to proceed, being able to understand the charges against him and to assist his attorney in his defense. Contrary to this report, appellant adduced evidence, at the competency hearing, from a Missouri State Hospital psychiatrist that he was mentally incapable of understanding the proceedings against him and was unable to assist effectively in his own defense. An affidavit by appellant’s counsel and appellant’s testimony were to the same effect.
There is presumption of competence to stand trial, and the burden of proof of incompetence is on the defendant. Deason v. State, 263 Ark. 56, 562 S.W. 2d 79 (1978). There we also said: “The test of competence to stand trial is whether an accused ‘has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.’ ” The trial court’s decision on competency requires an evaluation of the weight to be given the testimony, particularly when expert opinions are involved. The evidence was in conflict as to appellant’s competency to stand trial, and we cannot say there is insufficient evidence to uphold the court’s finding.
Appellant’s next contention is that the trial court erred in giving the state’s requested instruction on insane delusions. There was evidence that appellant experienced some delusions; for instance, “voices” told him he would marry Diana Ross, a noted singer, if he did certain things, such as the alleged offense, and if he did various other things, he would not marry her. The state requested and the court gave the following instruction:
The existence of an insane delusion is a defense to a crime only when the imaginary state of facts, if real, would justify or excuse the crime.
The appellant objected that “insane delusions” had not been raised as a defense and, furthermore, the instruction was taken from old cases and had no application to present law. The state relies on Bolling v. State, 54 Ark. 588, 16 S.W. 658 (1891); and Smith v. State, 55 Ark. 259, 18 S.W. 237 (1891), in support of this instruction. However, even in these cases, decided under prior law, we disapproved giving this instruction without guidance to the jury as to what would justify or excuse the crime. Here the court gave AMCI 4009, which is phrased in the language Ark. Stat. Ann. § 41-601 (Repl. 1977). That instruction reads:
A person is not criminally responsible for his conduct if at the time of that conduct, as a result of mental disease or mental defect, he lacked the capacity either to appreciate the criminility of his conduct or to conform his conduct to the requirements of law.
This statute, drawn from the Model Penal Code, replaces the former test of insanity in Arkansas, which was essentially the M’Naghten test. According to the commentary, its purpose “was to expand M’Naghten to include the “irresistible impulse’ theory, represented by the third-prong of the test in Bell v. State, [120 Ark. 553, 180 S.W. 195 (1919]. Section 41-601 (1) achieves the same effect through the use of the language ‘to conform his conduct to the requirements of the law.’ ”
In our view this recent statute is complete in setting out the tests to be applied in determining if a defendant is not guilty by reason of insanity and replaces the prior law on the subject. The test is whether or not the defendant could (1) conform his conduct to the law or (2) appreciate the criminality of his conduct. If a defendant was suffering from delusions at the time he committed the crime, these tests are sufficiently applicable. The insane delusion instruction is not in conformity with our present law, and we hold giving it constituted reversible error.
The appellant also contends the trial court erred in refusing to give his requested instruction on mental disease or defect. The court gave AMCI 4009, supra. Appellant’s requested instruction, however, added certain definitions as well as the three-pronged M’Naghten test formerly applied. He argues the jury was not given a complete definition of “mental disease or defect” nor of the word “appreciate” as used in the statute and the instruction, which was prejudicial to his defense particularly when considered in conjunction with the state’s instruction on insane delusions. As indicated, we have disapproved that instruction. Further, the instruction given, AMCI 4009, correctly recites the law as it relates to the defense of insanity. The court is not required to instruct the jury in every possible manner. Cobb v. State, 265 Ark. 527, 579 S.W. 2d 612 (1979). Furthermore, an AMCI instruction is the proper instruction to be given unless the trial judge finds it does not accurately state the law, as stated in our per curiam order of January 29, 1979. See Conley v. State, 270 Ark. 886, 603 S.W. 2d 415 (1980).
Finally, appellant contends the trial court erred in denying his motion for a continuance to allow him to procure the presence of an expert witness. In view of reversal, it becomes unnecessary to reach this issue.
Reversed and remanded. | [
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Tom Glaze, Justice.
In this negligence action, Tony Smith, a pawn shop owner, was sued by Jerry Thornburg, who alleged he had left his pickup truck with Smith to secure a loan in the amount of $365.00. Thornburg further asserted that, in obtaining the loan, he parked his vehicle on Smith’s lot, locked his truck’s doors and left his keys and title to the truck with Smith as collateral. Smith gave Thornburg a claim ticket that provided Smith, was not responsible for goods lost in pawn. Two weeks later, Thornburg drove by Smith’s lot and noticed his truck was missing; he stopped and asked Smith where the truck was. Smith, unaware the truck had been removed, advised Thornburg to notify the police that the vehicle had been stolen. The keys and title to Thornburg’s truck were still in Smith’s safe. After notifying the police, Thornburg filed suit against Smith in municipal court which returned a civil judgment in favor of Thornburg for $730.00 plus $65.45 in costs.
Smith appealed to the Sebastian County Circuit Court. After a nonjury trial, the trial judge stated that, when comparing the negligence of the respective parties, he found in Thornburg’s favor, thus, ordering Thornburg’s loan, interest and other related charges cancelled and adjudging Smith to pay Thornburg $150.00 in damages and $63.45 in costs. In this appeal, Smith argues Thornburg failed to show that Smith breached his duty of ordinary care. We agree.
In Howard’s Laundry & Cleaners v. Brown, 266 Ark. 460, 585 S.W.2d 944 (1979), we discussed negligence and its applicability to bailment situations as the one here as follows:
The rule in bailment cases is that the bailee may overcome the inference of negligence arising against it because of delivery in good condition and return in damaged condition by telling all that it knows of the casualty, and that it exercised ordinary care in all that it did with respect to the vessel. This burden, unlike that of persuasion which rested at all times on [the bailor], simply required [the bailee] to go forward with evidence sufficient to show that it had no more knowledge of the cause of the casualty than was available to the [bailor] and that it exercised ordinary care. At this juncture the burden of going forward would shift back to [the bailor] to ultimately persuade the trier of facts of negligence on the part of [bailee] proximately causing the casualty.
In applying the above rule to the facts before us, Thornburg’s only evidence was that he parked his truck on Smith’s lot, locked the truck and took his keys and title into Smith who loaned Thornburg the money. Thornburg had previously pawned a vehicle, and he said that he guessed the same standard of care or practice in pawning vehicles was followed in Arkansas. He figured his truck would stay on Smith’s lot unless Smith got more automobiles and had to move Thornburg’s. Thornburg offered no further evidence.
Smith testified that he had always put pawned cars on his parking lot, and he never told his customers that their vehicles would be taken anywhere else. Smith said that all he can do to protect the cars is to have them locked and placed on his lighted lot. Smith further stated that other pawn brokers in the area do the same thing with their pawned cars. Smith testified that he informs each person that pawns a car that he cannot be responsible for the customer’s vehicle. This information is also printed on the pawn claim ticket. Smith stated that he has owned the pawn shop for twenty years, had pawned probably a hundred vehicles and had never had one stolen. Smith had no employee at his pawn shop at night.
Another pawn shop owner, Thomas Ray Lester, testified that when he makes loans on vehicles, he has the customer park his or her car on his lot, tells the customer to lock and secure the vehicle, and puts the title and keys in his vault. Lester testified that he did not have anyone at his pawn shop at night. Further, he testified without objection that to the best of his knowledge other pawn shops in the area follow this same standard of care.
In sum, Smith presented unrebutted evidence that the procedure he followed in this pawn transaction with Thornburg was the standard or reasonable procedure and ordinary care followed by others in his business. Thornburg actually appeared to agree, and never offered any proof to show his truck was unsafe in the manner or in the lot he left it. Nor did Thornburg attempt to show Smith’s lot was in an unsafe location or, for safety reasons, in need of a fence. See, e.g., Annotation, Pawned or Pledged Property — Theft, 68 ALR 2d 1259, 1261, § 2, § 4(b) (1959).
Because Thornburg failed to show Smith breached his duty of ordinary care, we must reverse. | [
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Robert L. Brown, Justice.
The appellant, Yvonne Whitener, raises three points for reversal of her six-year conviction for delivery of marijuana. None of the points has merit, and we affirm.
The circumstances of this case evolved out of an undercover drug operation where Whitener and undercover officer David Moore of the White County and Searcy Drug Task Force first met on July 11,1991, at Moore’s apartment. At that time, Moore received a sample bag of marijuana from Whitener. Later in the evening, he went to Whitener’s house where, according to his testimony, she sold him a quarter-ounce bag of marijuana for $30. That sale formed the basis of a charge for delivery of marijuana filed against her.
At trial, following testimony, Whitener requested a jury instruction on the lesser included offense of possession of marijuana, but the circuit court denied the request, giving as its reason the fact that there was no rational basis for the instruction. The jury then found Whitener guilty of delivery of a controlled substance and sentenced her to six years imprisonment. At a subsequent hearing, Whitener’s attorney urged the court to sentence his client under the Alternative Service Act, but the court refused.
Whitener first argues that the circuit court erred in not giving an instruction of possession of marijuana because the evidence at trial warranted an instruction on the lesser included offense. This court has held in the past that possession of a controlled substance is a lesser included offense of delivery of a controlled substance because one cannot deliver a controlled substance without exercising some degree of dominion, control, and management over it. See Glover v. State, 273 Ark. 376, 619 S.W.2d 629 (1981), citing Ark. Stat. Ann. § 41-115(15) (Repl. 1977), now codified as Ark. Code Ann. § 5-1-102(15) (1987); see also Hill v. State, 33 Ark. App. 135, 803 S.W.2d 935 (1991).
The circuit court in this case before us, while accepting that possession is an included offense, ruled that based on the proof presented, there was no rational basis for the possession instruction. In doing so, the court referred to the apposite statute:
(c) The Court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.
Ark. Code Ann. § 5-1-110(c) (1987). The charge and proof by the state were for the actual delivery of marijuana, and Whitener did not testify. A jury, conceivably, could have disregarded this proof, acquitted Whitener of delivery, and found her guilty of the less serious charge of possession, but any rational basis for such a verdict is not readily apparent. Where no rational basis is present, we have affirmed the circuit court’s refusal to give the instruction. See e.g., Frazier, v. State, 309 Ark. 228, 828 S.W.2d 838 (1992). We cannot say that the circuit court erred in declining to instruct on mere possession.
We next turn ot Whitener’s contention that the circuit court was wrong not to consider probation or suspension under the Arkansas Criminal Code or the Uniform Controlled Substance Act. The argument is meritless. In 1991, the Arkansas General Assembly enacted Act 608 to eliminate confusion surrounding sentencing alternatives in drug-related cases under the Criminal Code and the UCSA. See Pennington v. State, 305 Ark. 507, 808 S.W.2d 780 (1991) (dictum). Act 608 amended two sections of the Criminal Code — Ark. Code Ann. §§ 5-4-104 and 5-4-301 — with regard to what sentences are authorized under the Code and when suspension or probation may be appropriate. In each section, Act 608 added the following category to a list of crimes for which suspension or probation was not appropriate.
(F) drug related offenses under the Uniform Controlled Substances Act, except to the extent that probation is otherwise permitted under that act.
Act 608 then added to this subsection: “In other cases, the court may suspend imposition of sentence or place the defendant on probation, except as otherwise specifically prohibited by statute.”
It is clear that the reference to “other cases” in Act 608 where suspension or probation might be appropriate does not include drug-related offenses, except where the UCSA expressly provides for it. The UCSA does provide for probation for mere possession of marijuana, but not for delivery. See Ark. Code Ann. § 5-64-407 (1987). Act 608 makes it obvious that delivery of marijuana is simply not a crime where either probation or suspension is available to the circuit court for consideration as an appropriate sentence. The court correctly rejected Whitener’s request.
In this same vein, Whitener argues that the circuit court found her eligible under the Alternative Service Act, now codified as Ark. Code Ann. § 16-93-501, et seq. (1987), but then erred in declining to follow the Act. “Eligible offender” is defined as:
any person convicted of a felony offense other than a capital felony offense, or murder in the first degree, murder in the second degree, first degree rape or kidnapping, or aggravated robbery, and who has never been previously convicted of a felony offense, and whose interests, and the interests of the state, in the opinion of the sentencing trial court, could be better served by diversion under the provisions of this subchapter than by sentencing under other applicable penalty provisions established by law.
Ark. Code Ann. § 16-93-502(6)(A) (Supp. 1991).
Though the circuit court did find Whitener to be “eligible” under the Alternative Service Act, it is clear from the court’s subsequent comments that it did not consider probation or suspension to be acceptable alternatives. The court noted that the jury has imposed the six-year sentence and that the sentence was commensurate with the crime. It added that alternative sentencing would not be “a proper disposition.”
Moreover, the court never made the corollary finding that the interests of the state would in fact be better served by diversion to alternative sentencing under § 16-93-502(6)(A). Indeed, the court concluded exactly the opposite and found that the six-year sentence was “not unduly lengthy.”
In sum, the court found that Whitener, though eligible, was not an appropriate candidate for alternative sentencing. Again, part of the reason for the court’s ruling was the fact that Act 608 excludes probation and suspension as sentences to be considered for delivery of marijuana. There was no abuse of discretion by the circuit court. The conviction and judgment are affirmed. | [
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David Newbern, Justice.
This is a premises liability case in which the Trial Court granted summary judgment in favor of the premises owner, Libbey Memorial Physical Medicine Center, Inc. (Libbey Memorial). The appellant, Kim Lively, argues the Trial Court erred in determining there were no remaining material issues of fact with respect to whether she was a licensee when she was injured on Libbey Memorial’s property and whether Libbey Memorial breached its duty owed to her. We hold there were remaining material issues of fact, and thus we reverse and remand. Ark. R. Civ. P. 56(c).
Evidence before the Trial Court in the form of discovery documents and affidavits revealed these facts. Libbey Memorial is a business in Hot Springs providing medical and exercise services to the public. Its facilities are open to members and nonmembers for a fee. At the time of the accident Lively was an employee of Libbey Memorial.
Libbey Memorial maintains whirlpool baths powered by jet pumps mounted along the sides of the pool. Intake suction pipes are located below the surface of the water. On a day when she was not working, Lively went to Libbey Memorial to use the whirlpool, and while doing so, her hair was sucked into an intake pipe. Although Lively’s hair was fastened to the top of her head, she believed a few strands got loose and were sucked into the pipe. After hearing Lively cry for help, another patron shut off the whirlpool machines. Some of her hair was cut off because it could not be extricated from the suction pipe. She claimed she almost drowned as a result of the incident.
Lively admitted being aware of a sign in the pool area warning patrons to keep a certain distance away from the whirlpool jets. Although she could not be certain, she believed the sign said to stay ten or fifteen inches away from the jets. She explained, however, that she did not know to keep a distance away from the underwater suction. She stated she was inexperienced in using whirlpools and did not know about the suction pipes located below the surface of the water. There was also evidence of a small sign in the women’s dressing room warning women who had long hair to either put their hair up or wear a bathing cap while using the whirlpool. Lively stated she had not seen that warning.
Lively filed suit against Libbey Memorial claiming she was an invitee on the premises at the time of the accident. She alleged Libbey Memorial’s negligence caused her to suffer serious injuries and requested $250,000 in compensatory damages. With respect to her punitive damages claim, Lively stated Libbey Memorial was on actual notice that two other, similar incidents had occurred prior to her accident and, despite this knowledge, Libbey Memorial took no action to protect Lively or the general public from injury. She contended this conduct showed “an utter indifference to, and a conscious disregard for, the safety of others,” and Lively claimed entitlement to $500,000 in punitive damages.
Libbey Memorial moved for summary judgment on the grounds that Lively was a mere licensee and the complaint did not allege willful or wanton conduct. Libbey Memorial supported its motion with Lively’s deposition statement that she did not believe anyone at Libbey Memorial intentionally injured her.
In response, Lively produced the deposition of the president of Libbey Memorial, Dewey Crow, who said allowing employees to use the whirlpool facilities free of charge was a fringe benefit of employment. Lively argued she was an invitee because Libbey Memorial received an economic benefit from her use of the whirlpool. She contended that by offering employees the use of the facilities free of charge, Libbey Memorial was better able to attract and retain employees and minimize out-of-pocket expenses.
The Trial Court stated there was no evidence that Libbey Memorial derived any economic benefit by allowing employees to use the whirlpool facilities during non-work hours. The use was merely gratuitous. The Trial Court thus held Lively was a licensee and Libbey Memorial owed no duty except to refrain from injuring her through willful or wanton conduct. The Trial Court also recognized that Libbey Memorial owed Lively the duty to warn of hidden dangers if she did not know, or had no reason to know, of the condition or risk involved.
The Trial Court reasoned (1) willful or wanton conduct was not pleaded and there was no evidence of such conduct, (2) there were no hidden dangers of which Libbey Memorial was obligated to warn Lively, (3) she had used the whirlpool on numerous occasions prior to the accident, and (4) she was aware of the sign warning patrons to keep a distance from the whirlpool jets.
1. Lively’s status
Lively first argues there were material questions of fact as to whether she was an invitee and it was reversible error for the Trial Court to determine she was a licensee as a matter of law. The burden of proving that there is no genuine issue of material fact is upon the summary judgment movant, and all proof submitted must be viewed in a light most favorable to the party resisting the motion. Any doubt and all inferences must be resolved against the moving party. Carmichael v. Nationwide Life Ins. Co., 305 Ark. 549, 810 S.W.2d 39 (1991).
We have defined “invitee” as “one induced to come onto property for the business benefit of the possessor.” Kay v. Kay, 306 Ark. 322, 812 S.W.2d 685 (1991); Coleman v. United Fence Co., 282 Ark. 344, 668 S.W.2d 536 (1984). A “licensee” is one who goes upon the premises of another with the consent of the owner for one’s own purposes and not for the mutual benefit of oneself and the owner. Tucker v. Sullivan, 307 Ark. 440, 821 S.W.2d 440 (1991).
In Tucker v. Sullivan, supra, citing Restatement (Second) of Torts § 332 (1965), we recognized an invitee may either be a public invitee or a business visitor. A public invitee is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. A business visitor is invited to enter or remain on land for a purpose directly or indirectly connected with the business dealings of the possessor of the land.
Lively contended that allowing employees to use the facilities free of charge as a fringe benefit better enabled Libbey Memorial to attract prospective employees and retain them. We cannot agree that there were no material questions of fact presented as to whether Libbey Memorial obtained a potential business benefit from Lively’s use of the whirlpool baths.
Libbey Memorial argues St. Louis I.M. & S Co. v. Pyles, 114 Ark. 218, 169 S.W.2d 799 (1914), is directly on point and requires an affirmance of the Trial Court’s decision that Lively was a licensee. Pyles was an employee of the defendant railroad company. His duties included traveling with supply cars and distributing oil. On a Saturday night, Pyles had traveled from El Dorado to Gurdon and was en route to Argenta the next day. Pyles obtained permission from his foreman to leave the cars at Gurdon and travel to Argenta on Saturday night instead of waiting for the cars to be transported on Sunday. The railroad company had furnished Pyles a pass allowing him to ride on all trains.
As Pyles was running down a path located between the main track and a sidetrack in an attempt to board a train bound for Little Rock, he stumbled on a pile of coal and fell under a slowly moving freight train. Pyles sued the railroad company for negligence in allowing the pile of coal to remain on the path. In finding Pyles to be a mere licensee when using the path, we stated,
There is not the slightest evidence to indicate that the pathway was used in a way that an invitation can be implied on the part of the railway company to the public or its employees to use it. The use was, at the most, merely permissive, and those who used it were licensees, who took the privilege with its concomitant peril.
Lively offered to prove her use of the whirlpool facility as a fringe benefit was more than merely permissive. A factual issue thus remained in that respect.
2. Duty owed to licensee
Lively next contends that even assuming the Trial Court correctly found she was a licensee as a matter of law, there were material questions of fact as to whether Libbey Memorial breached the duty owed to her. A landowner owes a licensee the duty to refrain from injuring him or her through willful or wanton conduct. King v. Jackson, 302 Ark. 540, 790 S.W.2d 904 (1990); Baldwin v. Moseley, 295 Ark. 285, 748 S.W.2d 146 (1988). If, however, a landowner discovers a licensee is in peril, he or she has a duty of ordinary care to avoid injury to the licensee. This duty takes the form of warning a licensee of hidden dangers if the licensee does not know or have reason to know of the conditions or risks involved. King v. Jackson, supra.
To support her argument that Libbey Memorial engaged in willful or wanton conduct, Lively produced evidence that the president of Libbey Memorial knew of at least one similar incident which had previously occurred involving a woman named Donna. In deposition testimony, Dewey Crow admitted he knew of an accident involving a woman named Donna which had occurred shortly before Lively’s alleged accident. Donna’s physician called Crow after the accident and told him Libbey Memorial should put up more signs in the pool area to make it more obvious that the whirlpool could be dangerous. Crow failed to take any further precautionary steps to avoid injury.
Despite this evidence, the Trial Court held there was no material issue of fact regarding whether Libbey Memorial acted willfully or wantonly. To constitute willful or wanton conduct, there must be a course of action which shows a deliberate intention to harm or which shows utter indifference to, or conscious disregard of, the safety of others. Daniel Const. Co. v. Holden, 266 Ark. 43, 585 S.W.2d 6 (1979); AMI Civ. 3d 1101 (1989). Our view of it is that Lively’s statement that she did not think anyone at Libbey Memorial intentionally injured her does not settle the issue with respect to that standard of care. A question of fact remained whether Libbey Memorial acted with utter indifference to, or conscious disregard of, the safety of others.
Not only must a landowner refrain from injuring a licensee through willful or wanton conduct, he or she must also warn a licensee of hidden dangers if the licensee does not know or have reason to know of the risk. The Trial Court noted Lively’s awareness of the sign requiring she stay 10 to 15 inches away from the pump.
A jury could have determined that the dangers associated with the underwater suction were hidden or not easily recognized. Summary judgment is inappropriate when there are disputed issues of fact. Although Lively admitted being aware of a sign warning her to stay a certain distance away from the whirlpool jets, there is no evidence that she understood this meant to stay away from the underwater suction. Lively said she did not know there were suction pipes located below the surface of the water. It cannot be stated that as a matter of law Lively was aware of the risk presented. A jury could conclude there was a hidden danger of which Lively was unaware and of which Libbey Memorial was obligated to warn. The adequacy of the warnings in evidence remained at issue. Rowland v. Gastroenterology Assoc., P.A., 280 Ark. 278, 657 S.W.2d 536 (1983).
Libbey Memorial contends Ark. Code Ann. § 18-11-305 (1987) provides immunity to landowners who allow “any person” to use their property for recreational purposes free of charge. The Trial Court did not rule on the applicability of the Statute, thus we will not consider it on appeal. See, e.g., Gatlin v. Gatlin, 306 Ark. 146, 811 S.W.2d 761 (1991); McDonald v. Wilcox, 300 Ark. 445, 780 S.W.2d 17 (1989).
Reversed and remanded.
Hays, J., dissents. | [
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Robert L. Brown, Justice.
The appellant, Brenton R. Piercy, raises multiple points for reversal of a jury verdict in favor of the appellee, Wal-Mart Stores, Inc. The points for reversal are meritless, and we affirm.
On October 10, 1988, Piercy claimed that he tripped on a bulge which was several inches high in an unsecured rug-mat at the entrance of a Wal-Mart store in Fort Smith. The mat, he testified, had been pushed up against a door through which customers passed in single file to enter the store. Because his father was directly in front of him, Piercy asserted, he could not see the mat and consequently tripped on it and fell on his left knee. He did not immediately report the injury because at first he did not believe that he had been injured. That night, he went to work and later testified that his leg hurt during his shift. He stated that he thought he had suffered a hamstring injury.
The pain became progressively worse, and on October 19, 1988, Piercy went to see his regular physician, Dr. Ronald P. Robinson, who referred him to Dr. Stephen A. Heim, an orthopedic surgeon. Dr. Heim fitted Piercy with a full-length cast that covered the back of his leg. At this point, he had still not notified Wal-Mart of his injury.
When his leg did not improve, Piercy returned to Dr. Heim, who changed the cast and placed his leg in a brace. He remained in the brace for about two weeks, and his leg showed no sign of improvement. During this period, he testified that he “was in considerable pain” and was unable to walk on the leg and therefore was confined to a wheelchair. On November 7, 1988, Piercy went to see Dr. Douglas W. Parker, Jr., a second orthopedic surgeon, who examined him for five successive days. On the fifth day, Dr. Parker evaluated the leg and returned Piercy to his regular physician, Dr. Robinson, due to the infection. Dr. Robinson then called in a surgeon, a Dr. Hunton, who promptly sent him to St. Edward Mercy Medical Center in Ft. Smith to have his leg drained.
An operation was performed on Piercy’s leg, and he remained in the hospital for eighteen days, spending part of that time in the intensive-care unit. He testified that, when he was dismissed, the “leg was not any better,” and he required physical therapy. Six to eight weeks later, he was able to get up and walk with the assistance of a walker. From that, he progressed to crutches and, eventually, a cane, which he used for about a year- and-one-half. He stated that he still experiences pain and has a limp.
Piercy sued Wal-Mart for damages on grounds that the mat at the entrance had been negligently maintained and that this caused the accident. At trial, Wal-Mart denied any knowledge of the accident prior to a report by Piercy’s father and presented proof that Piercy suffered from diabetes and had a history of various infections. Two days following a jury verdict in favor of Wal-Mart, Piercy’s attorney made a shopping trip to the WalMart store in question and observed that the mats at the entrance had been taped down. Piercy then moved for a new trial, asserting that the taping of the mats constituted newly discovered evidence. The circuit court denied the motion.
I. FAILURE TO GRANT NEW TRIAL MOTION
At trial, Wal-Mart presented considerable testimony on its internal safety procedures. As part of this defense, Wal-Mart’s store manager, Roger Trover, responded to a question on direct examination about taping the entrance mats down:
Well, actually, from a safety standpoint, from my perception, that would cause more of a risk than if they weren’t taped down, because the tape could roll up or it could come unstuck or whatever, and represent more of a trip hazard than the mat, itself, would.
Because two days after the trial the mats were taped down at the store entrance, Piercy wants to use this information to impeach Wal-Mart personnel and urges that the circuit court abused its discretion in refusing a new trial based on newly discovered evidence.
We do not agree. Rule 59(a)(7) of the Arkansas Rules of Civil Procedure states that a new trial may be granted because of “newly discovered evidence material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial. . .” A new trial based on newly discovered evidence, however, is not a favored remedy. National Bank of Commerce v. Beavers, 304 Ark. 81, 802 S.W.2d 132 (1991). Whether to grant a motion for new trial based on newly discovered evidence is within the sound discretion of the trial court, whose decision will not be reversed absent an abuse of that discretion. Liggett v. Church of Nazarene, 291 Ark. 298, 724 S.W.2d 170 (1987). When a trial court denies a motion for a new trial, the test is whether the verdict is supported by substantial evidence, giving the verdict the benefit of all reasonable inferences permissible under the proof. Isbell v. Ed Ball Const. Co., 310 Ark. 81, 833 S.W.2d 370 (1992); Scott v. McClain, 296 Ark. 527, 758 S.W.2d 409 (1988).
We have held that in a hearing on a motion for a new trial based on newly discovered evidence, the burden is on the movant to establish that he could not with reasonable diligence have discovered and produced the evidence at the time of the trial, that the evidence is not merely impeaching or cumulative, and that the additional testimony would probably have changed the result of the trial. See Rogers v. Frank Lyon Co., 253 Ark. 856, 489 S.W.2d 506 (1973); see also E.E.O.C. v. Rath Packing Co., 787 F.2d 318 (8thCir. 1986); Chemical Delinting Co. v. Jackson, 193 F.2d 123 (5th Cir. 1951); 6A Moore’s Federal Practice, § 59.08[3], pp. 59-103 - 59-104 (1987); 11 Wright & Miller, Federal Practice and Procedure: Civil § 2808, p. 60 (1973).
Using these standards, the proof in question before us fails primarily for one reason. Piercy admits that he wants to use the new evidence to “totally impeach Wal-Mart’s manager.” The fact that new information has been discovered which might merely impeach or otherwise test the credibility of a witness is not a sufficient reason to warrant a new trial. There was no abuse of discretion in the circuit court’s ruling.
II. THE ‘GOLDEN RULE.’
During Wal-Mart’s closing argument, the defense counsel stated:
All of [us] have a duty of care for our own safety, ordinary care. You can’t just ignore the fact that you’re approaching a curb or you’re approaching some steps or you’re approaching a doorway, that has a rug on the other side of it. You can’t ignore that. You’re duty bound to watch out where you’re going and not be tripping and so forth. Now, the same standard of care applies to me as it does to WalMart, and to you as it does to Wal-Mart. Now, what if somebody comes in your home and you’ve got a rug, there, a throw rug, we call them, at the door, maybe you’ve got an entryway through your garage or patio or whatever, and you’ve got a throw rug, there, for them to clean off their feet, before they come in on the good carpet. If some fellow comes in there and —
At that point, Piercy’s attorney interrupted and urged that this violated the golden rule doctrine:
Judge, this violates what is called the Golden Rule. He’s trying to put the Jury into Wal-Mart’s position, and that is not allowed in (the) province of law.
Following additional statements by counsel at a sidebar conference, the court admonished the jury:
Ladies and Gentlemen, the attorneys can draw what they feel are reasonable inferences from the testimony; what they say is not evidence, what they say is merely argument, how they interpret the evidence. You should remember the facts as you remember them. The attorneys have the right to try to persuade you to be — to go their way, but it’s ultimately up to you as to what you believe to be the facts or don’t believe to be the facts.
There was no objection by Piercy’s attorney to this admonishment.
We question whether Piercy actually objected formally to Wal-Mart’s closing argument, though he did voice his misgivings about it. Furthermore, Piercy did not object at all to the court’s admonition to the jury. But, in addition to these procedural lapses, we do not believe that reversible error occurred. We have previously defined the golden rule doctrine:
A golden rule argument suggests to jurors that they place themselves in the position of a party. (Citation omitted.) An example of such an argument is, “Would you take $15,000 for your father’s life?” (Citation omitted.) Or, conversely, “How would you like to have $ 15,000 taken out of your pocket?”
Smith v. Pettit, 300 Ark. 245, 248, 778 S.W.2d 616, 618 (1989). Based on this definition, Wal-Mart’s counsel was perilously close to consummating a golden rule argument when Piercy’s counsel cut him off.
A comment apposite to this case appears in one of our previous cases:
We have recognized the impropriety of a golden-rule argument such as counsel’s urging the jurors to award what they themselves would take for the life of their father or husband or wife. (Citation omitted.) Here, however, the argument was cut off after counsel had merely said that he thought the jurors were going to have to put themselves in the plaintiff s shoes. That bare remark falls decidedly short of being reversible error.
Collection Consultants, Inc. v. Bemel, 274 Ark. 223, 226, 623 S.W.2d 518, 520 (1981).
Similarly, in the present case, counsel for Piercy halted WalMart’s allusion to the jurors’ personal experiences in midstream. As in Bemel, the argument of Wal-Mart’s attorney falls short of reversible error.
III. ORDER OF TRIAL
Piercy further claims that the circuit court allowed WalMart to present its case-in-chief during Piercy’s own case-in-chief and that this action violated Ark. Code Ann. § 16-64-110 (1987), which governs the order of trial. The issue arose when Wal-Mart requested, after the noon recess, that the circuit court allow it to recall Piercy for several additional questions on cross-examination while Piercy was still putting on his case. Piercy’s counsel objected to this, and the circuit court overruled the objection.
Trial courts are endowed with authority to exercise reasonable control over the order of interrogating witnesses. Ark. R. Evid. 611(a). We have held that Rule 611(a) vests considerable discretion in the trial court in the regulation of the mode and order of interrogating the witnesses and presenting evidence. Freeman v. Anderson, 279 Ark. 282, 285, 651 S.W.2d 450, 452 (1983). In Freeman, we found no abuse of discretion when the trial court allowed a police officer to return to the witness stand after having been excused and released from the witness rule so that he could testify about his qualifications to estimate the repair cost to an automobile. The same holds true in this case. There was no abuse of discretion.
IV. HEARSAY OPINION
Piercy contends that he was required to testify that one of his physicians, a Dr. Holmes, told him in 1989 that he should not have any trouble walking on the injured leg. He urges that the admission of this hearsay was a blatant violation of Ark. R. Evid. 801 and that there is no applicable exception under Ark. R. Evid. 803.
Wal-Mart counters that the purpose of the question about Dr. Holmes’s evaluation related to Piercy’s motive for seeking a second opinion before the trial from Dr. Douglas Parker, whom he had not seen in two-and-one-half years. Dr. Holmes had told Piercy that he should not have difficulty walking on the leg “later on.” Piercy then sought a second opinion, which he testified to on cross-examination:
Q: Now, did your going back to Dr. Parker in 1991, did that have anything to do with this lawsuit being set for trial?
A: Yes, sir, it did.
Q: So, because this lawsuit was set for trial, you went back to see Dr. Parker?
A: Yes, sir, my attorney requested that I get another leg evaluation.
The circuit court did not err in overruling Piercy’s objection on hearsay grounds. The fact that Dr. Holmes advised Piercy that he would be able to walk on the leg was offered on cross-examination to prove why Piercy sought a second opinion from Dr. Parker prior to trial. As such, it was not offered, according to Wal-Mart, to prove that Piercy could walk in the future, but rather to show why he went to Dr. Parker. Statements proving motive are not excluded by the hearsay rule. Ark. R. Evid. 803(3); see also Tandy Corp. v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984). This ruling was discretionary with the circuit court, and that discretion was not abused.
V. RESPONSES TO INTERROGATORIES
Piercy also contends that the circuit court erred in not allowing him to introduce certain responses to interrogatories by Wal-Mart. Piercy’s Interrogatory 5 asked whether any persons had slipped on mats at the Wal-Mart store in question over the past five years and Interrogatory 11 asked if any persons had fallen on mats at any Wal-Mart stores. Wal-Mart responded to both interrogatories by objecting to them as overly broad, burdensome, irrelevant, and not likely to lead to admissible evidence. Piercy sought to present these objections to the jury, and Wal-Mart objected on relevancy grounds. The circuit court sustained Wal-Mart’s objection.
We observe no abuse of discretion in the court’s ruling. Piercy would have us believe that Wal-Mart’s objections to these interrogatories was an admission of sorts but cites us to no authority supporting his position. We do not agree. Wal-Mart was perfectly within its rights to object to any interrogatory. If the objection was unreasonable or without basis, then Piercy’s remedy was to move to compel a response.
Piercy is correct that, under Ark. R. Civ. P. 33, answers to interrogatories may be used to the extent permitted by the rules of evidence. However, objections to interrogatories are not answers. The circuit court correctly sustained Wal-Mart’s objection at trial.
Piercy further attempted to introduce into evidence answers to other interrogatories such as answers to Interrogatories 19 and 20 relating to the positioning and cleaning of the mats at the store entrance. Answers to interrogatories are hearsay and generally are inadmissible as part of a party’s case-in-chief. See Hunter v. McDaniel Bros. Constr. Co., 274 Ark. 178, 623 S.W.2d 196 (1981). Nevertheless, such answers may be admissible to impeach the answering party. Here, however, no attempt was made by Piercy to impeach Wal-Mart personnel at trial. The circuit court correctly refused to allow the answers to Piercy’s interrogatories into evidence.
VI. ADDITIONAL MEDICAL TREATMENT
For his sixth point, Piercy argues that evidence was admitted of twelve instances of his hospitalization, before and after the Wal-Mart accident, and that this was prejudicial and irrelevant. He cites us to the following principle:
[W]hen a defendant’s negligence aggravates, or brings into activity, a dormant or diseased condition or one to which the injured person is predisposed, the defendant is liable to the injured person for the full amount of the damages which ensue, notwithstanding such diseased or weakened condition.
Owen v. Dix, 210 Ark. 562, 196 S.W.2d 913, 915 (1946).
This is a correct statement of the law. However, the issue here, unlike the Dix case, is whether the twelve hospitalizations were at all relevant to the trial. The circuit court found that they were, and we cannot say that this ruling was error.
Piercy had a preexisting diabetic condition, and Wal-Mart argues that a diabetic condition for which Piercy was hospitalized correlates directly with poor eyesight due to cataracts and Piercy’s resulting fall. It further contends that Piercy had been hospitalized for various infectious conditions such as cellulitis, and this evidences a susceptibility to infection such as that which afflicted Piercy’s leg. Certainly, medical history which relates to the cause of an alleged accident or to resulting injury is relevant information for the jury to assess.
Rulings on the relevancy of evidence are discretionary with the trial court and are not to be reversed absent an abuse of discretion. Jim Halsey Co. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985). Given the apparent relevance of the medical records, it is difficult to conclude that the court abused its discretion.
VII. SPECULATIVE QUESTIONING
Piercy was asked on direct examination: . .[I]f that carpet, that piece of rug, had been flat at Wal-Mart that day, would you have tripped over it?” Wal-Mart promptly objected to the “speculation,” and the court sustained the objection and added that it was interested only in knowing what the facts were.
We do not agree with Piercy that he could answer this question as a lay expert under Ark. R. Evid. 701. Rule 701 provides for opinion testimony rationally based on the perception of the witness. In this case, Piercy testified that the mat was not flat but had been pushed up to the door. Hence, the question was hypothetical and did not pertain to the circumstances which, Piercy contended, caused the accident.
While allowing Piercy to testify that he would not have tripped over a flat mat seems relatively innocuous to us, we cannot say that the circuit court’s disallowance of this testimony was error or an abuse of discretion. Had Piercy responded negatively to the question, instead of being helpful to the jury, this would have fallen more readily into the category of a meaningless assertion. See Felty v. State, 306 Ark. 634, 816 S.W.2d 872 (1991).
Affirmed.
Dudley, J., not participating.
Sam Sexton III, for appellant.
Daily, West, Core, Coffman & Canfield, by; Robert W. Bishop, for appellee. ’ | [
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Donald L. Corbin, Justice.
Appellant, Nell Olmstead, brought this action against appellee, Don Moody, for negligence. Her complaint alleged appellee was negligent in continuing to refill appellant’s prescription for Prednisone, which is a steroid, for twenty-eight (28) rtionths. Appellant alleged Mr. Moody knew, or should have known, the drug would have adverse effects on the health and well-being of appellant, and he knew the drug could not be refilled without specific authorization from a physician. Appellant also asked for punitive damages alleging appellee or his agents or employees added the code “PRN,” which indicates that the prescription may be refilled without further orders from the physician, to the prescription and that the addition of that code constitutes intentional and willful conduct on the part of appellee.
A jury trial was held and the jury found both appellant and appellee were negligent and that each of their negligence was a proximate cause of appellant’s injuries. The jury further apportioned responsibility for appellant’s injuries and damages fifty percent (50 %) to appellant and fifty percent (50 %) to appellee. Consistent with the assessment of liability, the jury awarded appellant no compensatory damages, but awarded punitive damages to appellant in the amount of twenty-seven thousand dollars ($27,000.00). Since there was no award of compensatory damages, judgment was entered for appellee, which was correct according to our decisions in this area. See Williams v. Carr, 263 Ark. 326, 565 S.W.2d 400 (1978); see also Hale v. Ladd, 308 Ark. 567, 826 S.W.2d 244 (1992); Bell v. McManus, 294 Ark. 275, 742 S.W.2d 559.(1988).
Appellant moved for a new trial contending the jury verdict was clearly against the preponderance of the evidence. The trial court did not rule on the motion for a new trial within thirty (30) days and it was deemed denied pursuant to operation of law. Ark. R. App. P. 4(c). On appeal, appellant contends the trial court erred in failing to grant a new trial pursuant to Ark. R. Civ. P. 59. We have jurisdiction pursuant to Ark. Sup. Ct. R. 29(l)(o).
Appellant’s sole argument on appeal is that the trial judge erred in refusing to grant a new trial. The real issue underlying this argument is that the jury was wrong in its assessment of fault. See Hodges v. Jet Asphalt, 305 Ark. 466, 808 S.W.2d 775 (1991).
“[W]e do not review an apportionment of comparative negligence if fair minded men might differ about it (which is essentially the same test as that of substantial evidence).” Johnson v. Cross, 281 Ark. 146, 148, 661 S.W.2d 386, 387 (1983). In determining whether there is substantial evidence to support the verdict, we look at the evidence most favorable to the appellee, giving appellee the benefit of all reasonably permissible inferences. Johnson v. Clark, 309 Ark. 616, 832 S.W.2d 254 (1992). “Only when there is no reasonable probability that the incident occurred according to the version of the prevailing party or where fair-minded persons can only draw a contrary conclusion” will a jury verdict be disturbed. Id. at 618, 832 S.W.2d at 254.
Appellant argues that since the jury found appellee was reckless when they awarded punitive damages and only found appellant was negligent, they could not possibly have attributed responsibility for appellant’s injuries 50/50 since recklessness is a higher standard than negligence. Appellant is correct that recklessness is a higher standard than negligence, but what appellant fails to note is that the jury was not asked to decide whether appellant was reckless. A finding of negligence does not necessarily preclude a finding of recklessness. In the absence of an interrogatory to the jury asking the jury to state whether they found appellant was reckless, we cannot say the jury found appellant was negligent, but not reckless. The jury could have determined appellant was both negligent and reckless as they did with appellee. In this situation, a finding of 50 % responsibility for appellant would have been justified.
The jury “is the sole judge of the credibility of the witnesses and of the weight and value of their evidence, and may believe or disbelieve the testimony of any one or all of the witnesses, though such evidence be uncontradicted and unimpeached.” Takeya v. Didion, 294 Ark. 611, 613, 745 S.W.2d 614 (1988) (emphasis theirs) (quoting Morton v. American Medical Int’l, Inc., 286 Ark. 88, 689 S.W.2d 535 (1985)). Looking at the evidence most favorable to appellee with the benefit of all reasonably permissible inferences, there was evidence appellant continued taking Prednisone for twenty-eight (28) months without consulting Dr. Williamson, who originally prescribed it for her. There was also evidence from which the jury could infer Dr. Williamson informed appellant that Prednisone was a steroid, explained the use and effect of the drug to appellant, and informed appellant she should only be taking Prednisone for fourteen (14) days and the prescription was not refillable. There was evidence that appellant had gotten a prescription from another doctor, Dr. Farmer, which she was supposed to take for only six months and had refilled that prescription for more than a year after she was supposed to have stopped using it. Appellant did not inform her family doctor, Dr. Farmer, that she was taking Prednisone for over two years even though she was taking it on a daily basis and was seeing him frequently during that time for other medical problems. Appellant had self-medicated in the past and Dr. Farmer had previously warned appellant that she should not self-medicate. This constitutes substantial evidence from which the jury could have found appellant was fifty percent (50 %) responsible for her own injuries.
Appellant also contends “there was uncontroverted, unrefuted and unchallenged evidence as to compensatory damages” and it was, therefore, error for the jury to assess appellant’s damages at zero. While there was evidence appellant suffered some damages due to her extended use of steroids, appellant’s own physician, Dr. Farmer, testified that many of the complaints appellant attributed to the prolonged steroid use could have occurred even in the absence of the steroid use. Appellant argues the holding of Hale v. Ladd, 308 Ark. 567, 826 S.W.2d 244 (1992), requires reversal. In Ladd, there was unrefuted evidence the plaintiff suffered pecuniary damage attributable to the defendant’s actions. The jury found plaintiff suffered no compensatory damages, but awarded punitive damages in the amount of $7,500.00. The judge vacated the award of punitive damages and entered judgment for the defendant. We reversed for a new trial finding the verdict was not based on substantial evidence. Ladd is distinguishable because in Ladd the plaintiffs negligence was not in issue. Here, the jury found appellant and appellee equally responsible and a plaintiff is unable to recover compensatory damages when the plaintiff is equally at fault with the defendant. The jury’s finding that no compensatory damages were incurred by appellant in this case, even if not technically correct, reached the correct result. The jury had properly been instructed appellant would recover nothing if the jury attributed fault equally.
The denial of the motion for a new trial was correct.
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John I. Purtle, Justice.
Appellant appeals from his second offense conviction of driving while intoxicated by a jury in Crittenden County, Arkansas. He urges us to reverse his conviction because the trial court erred in allowing into evidence the appellant’s and his male companion’s state of dress (or undress) and because the evidence was insufficient to support the finding that he was in control of the vehicle. We find the state of dress was properly admitted and the evidence to be sufficient to sustain the conviction.
The police were called to the scene about 3:30 a.m. on October 13, 1983, where they discovered the appellant and his male companion asleep or passed out in a vehicle which was parked in the parking area of a grocery store in .West Memphis, Arkansas. The officers attempted to awaken them by slapping the roof of the vehicle, banging on the windows and hollering at them. Finally appellant was awakened and looked at the officers, then reached for the key, which was in the ignition, and attempted to start the vehicle. He was at that moment physically prevented from attempting to drive the automobile when the officers opened the door and grabbed him and took the keys from the ignition switch. The appellant was undressed from the waist down and his companion was undressed from the waist up. The officers later testified that there was a strong odor of alcohol in the car and on the appellant’s breath, that his eyes were bloodshot and that he was unable to walk. He refused to take the intoxalyzer test or to sign any papers
We first consider whether it was error to allow the jury to consider the state of dress of the occupants of the parked vehicle. The charge here is pursuant to Ark. Stat. Ann. § 75-2503(a) which prohibits being in control of a vehicle while “intoxicated.” The state was allowed to introduce the disputed evidence in support of the charge of intoxication. Even though the evidence presented may have indicated guilt of a separate misdemeanor, it was nevertheless relevant to show a course of conduct during the commission of the offense charged. Perry v. State, Til Ark. 59, 639 S.W.2d 344 (1982). When acts are so intermingled and contemporaneous with one another the evidence of all of them is admissible to show the circumstances surrounding the episode. Perry v. State, supra; Harshaw v. State, 275 Ark. 481, 631 S.W.2d 300 (1982); Russell & Davis v. State, 262 Ark. 447, 559 S.W.2d 7 (1977).
Having decided the evidence was relevant we must now decide whether it should have been excluded pursuant to Uniform Rule of Evidence 403. This rule provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979), cert. denied, 449 U.S. 852 (1980) and 459 U.S. 1020 (1982). Appellant relies on the case of Pitts v. State, 273 Ark. 220, 617 S.W.2d 849 (1981) to support his argument that evidence of homosexuality should have been excluded. Pitts is distinguishable. In the first place, the evidence in Pitts indicated the decedent was not homosexual. Additionally, the trial court ruled that references to homosexuality were not relevant and their admission would likely produce unfair prejudice outweighing any possible probative value. Whether to allow evidence establishing other crimes under certain circumstances is a matter that is within the discretion of the trial court. We will not reverse on appeal unless the trial court has abused his discretion. Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980).
We must consider Unif. R. Evid. 404 in conjunction with the argument relating to Rule 403. Rule 404 prevents evidence of other crimes, wrongs or acts from being admitted for certain purposes. The rule specifically allows evidence of other crimes for the purpose of showing motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. There seem to be more exceptions to this rule than there are adherences. This evidence, like evidence pursuant to Rule 403, is a matter within the discretion of the trial court. Price v. State, supra. The appellant’s mode of dress on this occasion was certainly not compatible with that of a normal person who was not intoxicated. Under the circumstances of this case we hold that the trial judge did not abuse his discretion in allowing this evidence to be introduced.
We must now decide the issue of whether appellant was in control of a vehicle within the meaning of Ark. Stat. Ann. § 75-2503 (a)(Supp. 1983). The appellant was found behind the steering wheel. The keys were in the ignition and when appellant awoke he attempted to start the vehicle. It does not matter that he failed to drive the vehicle away because he was prevented from doing so by the officers. There is no evidence that any one else had control over the automobile. We think the evidence in this case indicates that appellant was as much in control of his vehicle as an intoxicated person could be. No doubt any person who is intoxicated would be unable to control his vehicle in a safe and prudent manner. The Oklahoma Court of Criminal Appeals has considered a situation very similar to this one and pursuant to the same type of statute. We find the case of Hughes v. State, 535 P.2d 1023 (1975) to be persuasive. Hughes was seated beneath the steering wheel, slumped at an angle toward the passenger’s side, in a parked vehicle with the key in the ignition. The engine was not running and the driver was asleep. He was aroused by the investigating officers. Under those circumstances the Oklahoma Court of Criminal Appeals held that Hughes was in actual physical control of his vehicle within the meaning of the statute. The Oklahoma Court, in Hughes, in speaking about control stated: "the control contemplated meant more than the ‘ability to stop an automobile,’ but meant the ‘ability to keep from starting,’ ‘to hold in subjection,’ ‘to exercise directing influence over, ’ and ‘the authority to manage.’ ” (P. 1024) In the present case the evidence would support the finding that the appellant was exercising direct influence over his vehicle and had the authority to manage it. At any moment he could have awakened and started his vehicle. Although he probably would have been unable to safely guide and direct his vehicle, he nevertheless had control of it and could have attempted to drive it.
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P. A. Hollingsworth, Justice.
The sole issue presented by this appeal is whether statements made in pleadings are actionable as libel or if they are covered by an absolute privilege. The trial court held that the pleadings are covered by an absolute privilege and granted the appellees’ motion for summary judgment. It is from that holding that this appeal is brought. This appeal is before us under Sup. Ct. R. 29 (l)(o) as it presents a question in the law of torts.
This action began when the appellees, Calvin Cooper, Ray Williams, and Wilma Williams, filed a complaint against the appellant, the County Judge of Sevier County, on August 12, 1982, in which they alleged that the County Judge, who was in charge of the county equipment, let it be known and voiced around the county, that that equipment could be loaned, let, hired, and otherwise used in making improvements for private citizens, including himself, and did, in fact, do those things. The appellees sought an accounting, attorney’s fees, and a permanent injunction against the appellant. The complaint was signed by the appellees’ attorney, Winford L. Dunn, Jr., who is also an appellee in this action.
On November 1, 1983, the trial court enjoined Judge Pogue from hiring, letting, leasing, or otherwise permitting Sevier County property or personnel from being hired, rented, leased, or otherwise utilized for private property on or off county projects. The court denied the appellees’ request for accounting and attorney’s fees and found there was no personal or individual use or benefit of any of the services or equipment to the County Judge.
On December 28, 1983, the appellant filed a complaint against the appellees alleging that he was libeled by the pleadings filed in the earlier case, and that appellee, Winford L. Dunn, as attorney for the appellees is responsible under Ark. R. Civ. P. Rule 11. The appellees filed a motion for Judgment on the Pleadings or in the alternative, for Summary Judgment. The trial court found there were no questions of fact but only a question of law concerning the defense of absolute privilege. The trial judge followed the test announced by this Court in Mauney v. Millar, 142 Ark. 500, 219 S.W. 1032 (1920), where we stated:
There are two classes of privileged communications recognized in the law governing the publication of alleged libelous matter: One of these classes constitutes an absolute privilege, and the other a qualified privilege, and, according to the great weight of authority, pertinent and relevant statements in pleadings in judicial proceedings are held to be within the first class mentioned, and are absolutely privileged . . . The test as to absolute privilege is relevancy and pertinency to the issue involved, regardless of the truth of the statements or of the existence of actual malice.
The trial judge therefore found that the pivotal question here was tyhether the words contained in the pleadings were relevant to any of the issues raised. The court again quoted from Mauney to the effect that:
As to the degree of relevancy or pertinency necessary to make alleged defamatory matter privileged the courts favor a liberal rule. The matter to which the privilege does not extend must be so palpably wanting in relation to the subject-matter of the controversy that no reasonable man can doubt its irrelevancy and impropriety. In order that matter alleged in a pleading may be privileged, it need not be in every case material to the issues presented by the pleadings. It must, however, be legitimately related thereto, or so pertinent to the subject of the controversy that it may become the subject of inquiry in the course of the trial.
The trial judge found although there was no evidence “that Judge Bill Pogue used County equipment or personnel in making improvements for himself, it was, however, legitimately related to the subject of the controversy, and it could have become a subject of inquiry in the course of the trial.”
We agree. The rules announced in Mauney have been held to govern similar cases. See Rhode Island Ins. Co. v. Boatright, 186 Ark. 796, 56 S.W.2d 173 (1933) and Howard v. Ward and Howard v. Rhine, 238 Ark. 514, 383 S.W.2d 107 (1964). In addition, the Arkansas rule has been recently mentioned in federal court. In Westridge v. Wright, 466 F. Supp. 234 (E.D. Ark. 1979), Judge Roy applied Arkansas law to the issue of privilege and quoted the standard set out in Mauney, supra. The court stated:
Thus, under the established law of Arkansas, statements in pleadings in judicial proceedings are absolutely privileged as long as the statements are relevant and pertinent to the issues raised in the case. Statements in pleadings, if relevant and pertinent to the issues, are absolutely privileged even if the statements are false and made maliciously. The issue which the court must resolve . . . is . . . whether the allegations were relevant and pertinent . . . It is clear that this issue is one to be resolved by the court rather than a jury.
Here, the appellant is not challenging the trial court’s factual finding that the allegations were relevant and pertinent to the issues. Rather, he argues first that A.R. Civ. P. Rule 11 makes a lawyer liable for false allegations in a pleading since the rule states that a lawyer’s signature on a pleading constitutes a certificate by him that to the best of his knowledge, there is good ground to support the pleading. Rule 11 goes on, however, to provide that the sanction for a willful violation of this rule is appropriate disciplinary action for the attorney. The same privilege that extends to pleadings extends to the attorneys who prepare them. Restatement [Second] Torts § 586 provides that “[a]n attorney at law is absolutely privileged to publish defamatory matter concerning another ... in the institution of ... a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding.” The appellant’s argument is without merit.
The appellant’s other contention is that this Court should adopt the rule followed by Louisiana courts that pleadings are only qualifiedly privileged. Under this minority view, an allegation is not privileged unless founded on probable cause and not known to be false. We decline to adopt this position and adhere to our rules as stated in Mauney, supra.
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George Rose Smith, Justice.
In a non-jury trial Williford was convicted of DWI, fourth offense, and sentenced to a year’s imprisonment, a $1,000 fine, and revocation of his driver’s license for three years. His appeal, presenting six arguments for reversal, comes to this court under Rule 29 (1) (c). We affirm the judgment.
Two of the arguments, that the Omnibus DWI Act relieves the State of its burden of proof and is void for vagueness, were answered in Lovell v. State, 285 Ark. 425, 678 S.W.2d 318 (1984). A third, that the statute violates the separation of governmental powers, was answered in Sparrow v. State, 284 Ark. 396, 683 S.W.2d 218 (1985).
Fourth, the arresting officer took Williford to the police station and administered a breathalyzer test, which showed a blood alcohol content of .20%. The statute provides that the person tested may request an additional test at his own cost. Ark. Stat. Ann. § 75-1045(a)(3) (Supp. 1983). It further provides that a law enforcement officer’s refusal to assist the person in obtaining an additional test precludes proof of the test taken at the direction of a law enforcement officer. § 1045(c)(3).
It is argued that the officer must assist the person to the fullest possible extent in tapping his financial resources, including transportation necessary for him to raise cash and transportation to the test site. We do not read the statute as penalizing anything other than an officer’s refusal to provide assistance that is reasonable at the time and place. This incident occurred at about 2:00 a.m. Williford signed a form informing him with regard to the officer’s test: “If you disagree with the results of this test, you can request a test of a different type. I will assist you in obtaining another test of your choice given by a doctor or other qualified person. You must be willing to pay for the cost of any such additional test. ” At the bottom of the form Williford signed a statement requesting an additional test and agreeing to pay for it.
The arresting officer testified he told Williford that he would take Williford to the hospital for a test, for which the hospital required $50.31; but Williford had only $2.15. The officer also offered to allow Williford to use the telephone. There is no indication that Williford requested anything else. He did not testify at the trial. In view of the officer’s testimony the trial judge was right in denying the defense motion to exclude proof of the test result.
Fifth, it is argued that the State failed to show that the breathalyzer test met the statutory condition for being considered valid if performed according to methods approved by the State Board of Health. The defect com plained of is the officer’s failure to observe Williford for 20 minutes before the test. Reliance is placed upon a Department of Health check list containing this instruction: “Observe subject for minimum of 20 minutes — no oral intake of anything.”
The arresting officer testified that for a period of 26 minutes he observed Williford at the scene of the arrest, in the patrol car’s rear view mirror as Williford sat on the passenger side of the back seat while he was being taken to the police station, and at the station itself. He said that he would have been aware of Williford’s having put anything in his mouth. The officer himself operated the testing device. We do not read the Health Department instruction as requiring that the officer stare fixedly at the arrested person for 20 minutes. The offficer’s testimony made a prima facie showing of compliance with the regulation. There is no contradicting testimony. The result of the test was properly received in evidence.
Sixth, it is argued that the proof of one of Williford’s three prior convictions for DWI does not show that he waived the right to counsel. The record consists of a photocopy of a municipal court docket sheet, which recites that Williford “waived right to atty.” It is insisted that the judge’s purported signature is not legible. Many persons’ signatures are not legible, but that alone does not invalidate them. Here the clerk of the court certified that the photocopy of the docket sheet was an accurate record of the proceedings. No effort was made to show that the judge did not actually sign the docket sheet. The contention is without merit.
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P. A. Hollingsworth, Justice.
The appellant, who was 17 at the time, was charged with attempted capital murder in September 1978 for robbing a convenience store and kidnapping, raping, and shooting the clerk. He pled guilty and was sentenced to life imprisonment by the trial court on October 30, 1979. Nearly four years later, on May 31, 1983, the appellant filed a petition seeking post-conviction relief. After an evidentiary hearing, the trial court denied the requested relief.
Ark. R. Crim. P. Rule 37.2(c) provides that all petitions filed under Rule 37 “must be filed in circuit court. . .or in the Supreme Court within three (3) years of the date of commitment, unless the groúnd for relief would render the judgment of conviction absolutely void.” These rules were promulgated on December 18, 1978, before the appellant’s conviction on this charge.
We dealt with this question in Rogers v. State, 265 Ark. 945, 582 S.W.2d 7 (1979) where we stated:
More than five years have passed since petitioner’s commitment,. . .If a grave injustice was committed, why did petitioner wait so long to file his petition? Petitioner is not claiming relief under some new law that has been applied retroactively but his allegations could easily have been raised five years ago in a motion for new trial. He could have filed his petition for post-conviction relief as soon as the mandate affirming the judgment was issued by this Court.
In Collins v. State, 271 Ark. 825, 611 S.W.2d 182 (1981), we found a petition filed more than three years after rehearing was denied by the U.S. Supreme Court to be clearly untimely. We held that it was to be denied unless the grounds asserted would render the judgment void.
We addressed the substance of the petitioner’s allegations in Rogers supra., because they could be determined from the record and by applying existing state law. Here the record, which was not abstraced, reveals that at the time of sentencing, the trial judge carefully explained what a waiver of jury trial meant, and the appellant clearly stated he understood.
When a guilty plea is challenged, the issues are whether the plea was intelligently and voluntarily entered and whether the accused entered the plea with advice of competent counsel. Williams v. State, 273 Ark. 371, 620 S.W.2d 277 (1981). The appellant has the heavy burden of establishing that counsel’s advice was not competent. U.S. v. Cronic, 104 S.Ct. 2039 (1984); Crockett v. State, 282 Ark. 582, 669 S.W.2d 896 (1984).
From a review of the record and briefs before this Court, we find the petition for post-conviction relief was filed beyond the time allowed and was without merit.
Affirmed. | [
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George Rose Smith, Justice.
In 1977 the principal appellant, an improvement district, was organized to construct facilities for off-street parking in Fayetteville. Within the next two years the City of Fayetteville constructed near the downtown square a 40,000-square-foot building containing an auditorium, meeting rooms, and office space. In October, 1979, the City executed a 2S-year lease of the building to the University of Arkansas, the building to be used as a Continuing Education Center. A month later the District, having constructed parking facilities in the area, revised its assessment of benefits to include an assessment of $122,180 in total benefits to city-owned Tract I, on which the Center had been built.
In 1982 the City brought this suit in chancery court, asking that the assessment of benefits against Tract 1 be declared void because the Center is public property being used exclusively for public purposes and is therefore exempt from any assessment of benefits by an improvement district. Alternatively the City asserted that the assessment is excessive and should be reduced. The District’s answer denied that the Center is being used for an exclusively public purpose, raising the main issue in the case. The chancellor granted the City’s motion for summary judgment, finding that the Center’s use is exclusively public. We disagree with that view of the case and set aside the award of a summary judgment.
The facts, as far as they have been developed, are not in dispute. The City’s lease to the University provides that the Center will be used for continuing education and will also be available for use by the general public when not needed for continuing education. The fees charged by the University for use of facilities at the Center are not sufficient to cover the cost of operation. The University has two categories of charges: An educational rate for educational meetings sponsored by the University and a substantially higher rate for commercial groups. The Center is in competition with hotel-type conference facilities, such as the nearby Hilton Hotel. Within a six-month period groups using the Center included apparently private organizations: Baldwin Piano & Organ Company, Universal Life Meeting, Micro-Processor Conference, Cosmetology Institute, Century 21 Sales Rally, Daisy Manufacturing Planning Session, Pro-Life Rally, and others.
The Constitution of 1874, Article 16, § 5, provides property tax exemptions for public property used “exclusively” for public purposes and for grounds used “exclusively” for school purposes. Although the constitutional exemption is stated to be from ad valorem taxation, the same public purpose exemption extends to improvement district assessments unless a statute provides otherwise. Waterworks Improvement Dist. No. 2 v. Logan County, 155 Ark. 257, 244 S.W. 4 (1922); Board of Improvement v. School District, 56 Ark. 554, 19 S.W. 969, 16 LRA 418, 35 Am. St. Re. 108 (1892). No such statute is involved here.
Many of our cases discussing “exclusive” uses for a given purpose were reviewed in Hilger v. Harding College, 231 Ark. 686, 331 S.W.2d 851 (1960). There Harding College, a non-profit educational institution, sought an exemption from taxation for its on-campus printing shop and laundry, as being grounds used exclusively for school purposes. Both the shop and the laundry provided jobs for students and services for the college; Both, however, accepted outside work in competition with local concerns, the shop’s outside work being 10% of its total volume and the laundry’s being 37%. Although all the revenue was used for school purposes, the court held that neither property was being used exclusively for school purposes. Excerpts from the opinion explain the court’s reasons for its ruling:
Taxation is an act of sovereignty to be performed . . . with j ustice and equality to all, and exemptions, no matter how meritorious, are acts of grace and must be strictly construed. . . . The fact that the rents and revenues of a property owned by a charitable corporation are devoted to the purpose for which the corpora tion was organized, will not exempt such property from taxation. It is only when the property itself is actually and directly used for charitable purposes that the law exempts it from taxation.
JL JL W w W W
There is a material difference between the use of property exclusively for public purposes and renting it out and then applying the proceeds arising therefrom to the public use. The property under our Constitution must be actually occupied or made use of for a public purpose and our court has recognized the difference between the actual use of the property and the use of the income. [Italics in the original.]
The chancellor addressed the argument that the facilities of the Center are being occasionally used for non-public purposes, but he reasoned that “the University’s use is not the City’s use.” In a sense that is true, but the basic rule of our law is that tax exemptions must be construed strictly. In view of the commercial groups’ use of the Center for nonpublic purposes, Tract 1 would not be exempt from the assessment if it were owned solely by the City or solely by the University. Strict construction does not permit the City and the University, by joining forces, to do indirectly what neither could do directly.
The District argues secondarily that we should abandon the rule allowing public property to be assessed for benefits conferred by an improvement district, but we perceive no reason for such a change.
The summary judgment is reversed and the cause remanded for further proceedings on the merits and on the City’s assertion that the assessment of benefits is excessive. | [
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Per Curiam.
On March 22, 1982 Clinton Cavin entered a plea of guilty to two counts of theft by deception. The court suspended sentence for a period of eight years on the condition that appellant make restitution to his victims in the amount of $66,240 of which $20,000 was to be paid on March 22, 1983 and the balance in annual installments of $5,000. The suspension was further conditioned upon payment of court costs, a fine of $10,000 and good behavior. On July 28, 1983 the suspension was revoked on a finding of the court that appellant had inexcusably failed to make any payments of restitution or court costs and committed him to the Arkansas Department of Correction for a term of eight years. The Cóurt of Appeals affirmed the revocation. Cavin v. State, 11 Ark. App. 294, 669 S.W.2d 508 (1984).
Petitioner now seeks permission to proceed in the circuit court with two allegations of ineffective assistance of counsel, neither of which is substantiated with facts or supported with a showing of prejudice. Petitioner first alleges that counsel failed to document his lack of income, but he fails to state what documentation was available. An assertion that counsel could have done something more is not grounds for an evidentiary hearing unless the petitioner demonstrates that there was in fact some specific evidence to be presented to the court. Blakely v. State, 283 Ark. 138 671 S.W.2d 183 (1984); Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1982).
After the state responded to this petition and it had been submitted to us, petitioner requested permission to substitute another petition in which he would provide some factual support for the allegation concerning petitioner’s income. The facts consisted of statements that petitioner’s only income was an expense account and that petitioner.had worked and some commissions were due to be paid to him. The bare statements, however, do not demonstrate that counsel’s conduct in not eliciting the evidence at the revocation hearing so undermined the proper functioning of the adversarial process that the hearing cannot be relied on as having produced a just result. See Strickland v. Washington, -U.S__, 104 S. Ct. 2052 (1984). Counsel did produce evidence of petitioner’s financial status. There may have been other evidence, but the petition he has asked to substitute does not show it to be so significant that the outcome of the hearing was rendered unreliable because it was omitted. In nearly every trial and hearing there are facts which could have been brought out or witnesses who could have been called. Merely citing those facts or naming the witnesses is not enough to prove that the proceeding was unfair. Accordingly, the motion to substitute is denied.
Petitioner also alleged that counsel failed to object to the lack of written conditions of his suspended sentence. While it is true that written conditions of a suspended sentence must be provided to the convicted defendant, Ross v. State, 268 Ark. 189, 594 S.W.2d 852 (1980), the question is before us in a petition for postconviction relief, not on direct appeal. To prevail on the allegation of ineffective assistance of counsel under Rule 37, a petitioner must do more than state that some right was not afforded him. He must establish actual prejudice arising from counsel’s conduct; that is, the petitioner must show that not having the written list of conditions prejudiced him in some specific way. The record, however, indicates that petitioner knew he was not abiding by the conditions of his release. There was nothing to suggest at the revocation hearing, nor is there anything to suggest in the Rule 37 petition, that petitioner was not fully aware of what he was required to do to remain free. An allegation of ineffective assistance of counsel without a showing of prej udice does not warrant further consideration by this court. Strickland v. Washington.
Petition denied. | [
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Robert H. Dudley, Justice.
In a trial to the court, the appellant was found guilty of aggravated robbery and theft of property. Next, the court found that appellant previously had been convicted of more than one, but less than four, felonies and imposed enhanced sentences of forty and five years. See Ark. Stat. Ann. § 41-1001 (Repl. 1977 and Supp. 1983). Appellant contends that the trial court committed error in considering, for enhancement purposes, a prior conviction in which the state did not prove that appellant had been represented by counsel.
At trial, the court asked appellant’s counsel, “Is there any contention that he wasn’t represented by counsel at any of these convictions?” Counsel replied, “No, Your Honor. I think the only contention that we would have is that some of these are awfully old.” Having failed to raise the issue below, the point is waived, and cannot be considered for the first time on appeal. Hefley v. State, 281 Ark. 324, 663 S.W.2d 732 (1984). | [
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Kathleen Bell, Special Chief Justice.
On March 19, 1980, at the behest of Mr. Archie Caudle, Assistant Manager of the Wal-Mart Store, the Appellee was arrested for shoplifting. The Appellee was tried in the Municipal Court of Fort Smith and was acquitted for the charge. She then initiated an action for false arrest, false imprisonment, malicious prosecution and intentional infliction of emotional distress.
At the conclusion of the Appellee’s case, the Appellant moved for summary judgment on the issue of punitive damages and for directed verdicts as to the issues of false arrest and intentional infliction of emotional distress and denied the other motions made by the Appellant. These motions were renewed by Appellant after both sides had rested and were denied by the trial court.
The jury awarded the Appellee $850 compensatory damages and $20,000 punitive damages. The Appellant moved for Judgment N.O.V. and for a new trial. The trial court denied those motions and this appeal then ensued, i Jurisdiction in the court is pursuant to Rule 29(1 )(o). We affirm.
The facts in this case, viewed most favorably to the Appellee, are that on March 19, 1980, the Appellee was shopping in the Appellant’s Towson Avenue store in Fort Smith, Arkansas for the second time on that date. On this particular occasion she was in the store for the purpose of purchasing dog food. While there she also picked up a coffee mug and a felt tip pen, value approximately fifty-nine cents (59‡). Appellee was observed by a store employee placing the pen on, or partially in, her purse. Assistant Manager Caudle was approached and informed of her actions. Caudle then commenced his personal observation of Appellee. At all times, Caudle was able to see the pen, which was contained in a cardboard package. Caudle observed Appellee for approximately 10-20 minutes, including the time she was in the check-out line paying for the other items. When Appellee was outside the store, she was approached by Caudle. He pointed to the still visible pen and asked if she had paid for it. Appellee told him no she had forgotten, but would return and do so. Caudle, Appellee and another male employee reentered the store. Appellee started in the direction of the check-out counter and was informed by Caudle they had to go to the back. Appellee was accompanied into the store office by Caudle and two other store employees.
Appellee testified at this point that she felt she was detained because of the behavior of Caudle and the presence of the second employee. Caudle testified that the purpose of the second employee was to ensure that Appellee did not bolt and run and that she would not have been allowed to leave the premises voluntarily.
Upon arrival in the office, Caudle immediately phoned the police and then informed Appellee she was under arrest. Appellee insisted to Caudle that she simply forgot she had the pen and was willing to pay for it. She also requested that he telephone a friend of Appellee’s, a retail merchant in the area, to verify her good character. Caudle stated that once the decision to stop was made, there was little or nothing the Appellee could have said to change that decision. He testified that he felt it was a good stop and it was the job of the jury to listen to her story and make a decision as to guilt or innocence. He said he therefore made no effort to believe the statement of Appellee.
The Appellant had an established procedure for the detention, interrogation, and prosecution of shoplifters. That procedure required that the person be interrogated after detention. The personal observation and the interrogation could lead to a decision that the person simply forgot to pay and should be released. The manual further states that the fact an item was not paid for does not necessarily mean a person was guilty of shoplifting.
Even though a part of Caudle’s job as assistant manager involved the apprehension of shoplifters, he testified he was not familiar with that procedure and it was not utilized by him. After the stop was made he felt it was his responsibility to proceed with prosecution and it was the duty of the court to determine any other issues.
On the day the matter was set before the Municipal Court of Fort Smith, the City Attorney, Jim Filyaw, was asked by the Appellee’s counsel to listen to her version of the incident. Filyaw did so and then approached Caudle with a recommendation to dismiss the charge. Filyaw had questions as to whether Appellee had the intent to steal and stated that he found Appellee to be open and truthful. The decision whether to proceed was left to Caudle. Caudle’s response was that once they arrest someone, they prosecute them regardless. The Appellee was tried and found not guilty.
The question the court is initially presented with is the issue of probable cause for the arrest and prosecution of the Appellee. “The test for determining probable cause is an objective one based not upon the accused’s actual guilt, but upon the existence of facts or credible information that would induce a person of ordinary caution to believe the accused to be guilty”. Kroger Co. v. Standard, 283 Ark. 44, 670 S.W.2d 803 (1984); Malvern Brick and Tile Co. v. Hill, 232 Ark. 1000, 342 S.W.2d 305 (1961). Unless both the facts and the reasonable inferences to be deduced from those facts are undisputed, this issue is to be submitted to the jury.
The appellant, replying upon Kroger Co. v. Standard, supra, contends that the trial court erred as a matter of law in submitting the issues of malicious prosecution and false imprisonment to the jury. This reliance is not well founded. The Kroger Co. Court found the Appellant had the benefit of the shoplifting presumption, Ark. Stat. Ann. § 41-2202(2) (Repl. 1977), which arises with the knowing concealment of unpurchased items. Applying, in conjunction, this presumption, Rule 301 of the Arkansas Rules of Evidence and the testimony of the Appellee, the Court held that there was not substantial evidence that Kroger failed to exercise the ordinary caution exhibited by the reasonably prudent merchant. Kroger Co. v. Standard, supra at pages 48-49.
Assistant Manager Caudle testified he was able to see the pen at all times during the period he was observing the Appellee. The shoplifting presumption did not arise there and thus, the Appellee did not have to overcome the burden imposed by Rule 301. The Appellant did have probable cause for the initial stop of the Appellee to question her with respect to the pen. However, it can not be held, as a matter of law, that the Appellant thereafter exercised ordinary caution in these circumstances. Once the decision to stop was made, the prosecution of Appellee was automatic, according to Appellant. There was no effort made to listen to, or believe, the explanation proffered by Appellee because there was nothing she could have said that could have changed the Appellant’s decision to prosecute. And additionally, the Appellant continued with the prosecution after the recommendation was made by the City Attorney that the action be dismissed.
While those facts, as were all others, were undisputed, they were susceptible to different inferences. The submission of the issues of false imprisonment and malicious prosecution to the jury was entirely appropriate in these circumstances. Kroger Co. v. Standard, 283 Ark. at page 47.
The Appellant contends that the issue of punitive damages should not have been submitted to the j ury because the facts were undisputed. It is not sufficient that the facts be undisputed. Before a trial judge can decide as a matter of law, the issue of punitive damages, the reasonable inferences to be deduced from those facts must also be undisputed. In this instance, Mr. Caudle testified that he had no knowledge of the shoplifting procedure enacted by the store and that this procedure was not used by him. It was his belief that any person leaving the store with unpaid for merchandise should be prosecuted and because of that belief, he made no effort to listen to an explanation of the detained individual. And in the fact of the City Attorney’s recommendation to dismiss, the decision of the Appellant was to continue with the prosecution. This recommendation had no effect upon Appellant’s decision because, once the initial decision to prosecute was made, it was not reconsidered.
The inferences to be deduced from those facts are not undisputed. The trial court could not, as a matter of law, have decided the issue of punitive damages.
The Appellant also contends that the Appellee was not detained because she returned to the store voluntarily and never asked to leave. The Appellant is apparently negating the testimony of Mr. Caudle. He testified that he had Appellee guarded from the time she was stopped outside the store until the time the police arrived. The Appellee was led into an office and guarded by employees of the Appellant. The confinement of Appellee within the boundaries determined by the Appellant was complete. Restatement of the Law of Torts (2d) § 39 (1965).
Appellant also argues that two of the jury instructions given by the court were erroneous and that the trial court erred by its refusal to give Appellant’s requested instruction. However, the Appellant made only general objections to the instructions given by the court. A general objection is insufficient to present the issue on appeal. Rule 51, Arkansas Rules of Civil Procedure.
The Appellant specifically objected to the trial court giving an instruction stating that “malice could be inferred from certain conduct.” It was understood by the court that the objection had reference to the court’s instruction on punitive damages, derived from AMI 2217 (Court Instruc tion 14). On appeal, the Appellant now asserts that AMI 2217 has no application in intentional tort cases, such as this one. This objection cannot be made for the first time on appeal. Blissett v. Frisby, 249 Ark. 235, 458 S.W.2d 735 (1970).
Appellant next contends that the trial court erred in sustaining an objection made by Appellee’s counsel during closing argument. During Appellant’s closing statement, counsel stated Appellee had alleged Caudle had acted arbitrarily and capriciously because he had not verified Appellee’s reputation with Bill Fields as requested by Appellee. Counsel then commented, “I hope the jury will notice that no one has asked the City Attorney to check with Mr. Fields or other of plaintiff’s witnesses regarding the reputation or character of plaintiff.” Appellee’s counsel objected, stating this constituted a statement on facts not in evidence, that there was not proof whether the request had been made or not. The Appellant responded that he felt he was entitled to ‘‘mention lack of evidence, which could have easily been presented had plaintiff chose to do so.”
The court sustained the Appellee’s objection. The closing argument was not recorded and this exchange was reconstructed by counsel in chambers.
Control of counsel’s argument is within the wide range of discretion exercised by the trial judge. The exercise of that discretion will not be reversed, in the absence of abuse. Lewis v. Pearson, 262 Ark. 350, 556 S.W.2d 661 (1977); St. Louis, I.M. & S. Ry. Co. v. Earle, 103 Ark. 356, 146 S.W. 520 (1912).
The exercise of the trial court’s discretion here cannot be held to have been an abuse.
The appellant lastly contends that the evidence was insufficient to support the verdicts and the trial court erred in not granting Judgment N.O.V. The standard for substantial evidence is enunciated in Love v. H.F. Construction Co., Inc., 261 Ark. 831, 552 S.W.2d 15 (1977). Employing this standard, we can not hold as a matter of law, that ‘‘there is no reasonable probability in favor of Appellee’s version.”
From the testimony of Caudle, the jury could have reasonably inferred conscious indifference to the consequences of his action. Such a finding would sustain a verdict on punitive damages. Satterfield v. Rebsamen Ford Inc., 253 Ark. 181, 485 S.W.2d 192 (1972); Dalrymple v. Fields, 276 Ark. 185, 633 S.W.2d 362 (1982). There was also substantial evidence to support he verdict as to compensatory damages and the decision of the jury will not be disturbed.
Affirmed.
Hubbell, C.J., not participating.
Hickman and Hays, JJ., dissent. | [
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Per Curiam.
Petitioner Tad Anthony Isom was found guilty by a jury of rape and sentenced to a term of 20 years imprisonment and a $5,000 fine. We affirmed. Isom v. State, 280 Ark. 131, 655 S.W.2d 405 (1983). Petitioner now seeks permission to proceed in circuit court for postconviction relief pursuant to A.R.Cr.P. Rule 37 on the ground that he was not afforded effective assistance of counsel at trial.
During voir dire venireman Hill said that if he were on trial he would want to testify. He also said that he worked with the victim’s boyfriend. Petitioner contends that counsel was ineffective in failing to exercise a peremptory challenge to exclude Mr. Hill from the jury.
To prevail on an allegation of ineffective assistance of counsel, the petitioner must establish that the conduct of counsel prejudiced him so as to undermine the proper functioning of the adversarial process. Strickland v. Washington, _U.S__, 104 S. Ct. 2052 (1984). The object of a review of a claim of ineffectiveness of assistance of counsel is not to grade counsel’s performance but to find actual prejudice. Strickland v. Washington. Petitioner has not shown that he was prejudiced by counsel’s representation.
Hill said that he had not discussed the case with the victim’s boyfriend and that he could make a decision in the case without any “feeling oneway or the other.” He was not asked to elaborate about wishing to testify if it were his trial, but he did answer “yes” when asked if he understood that petitioner was not required to testify and that the failure to testify should not be held against him. Hill also said he could give petitioner a fair and impartial trial and would hold the state to its burden of proving guilt beyond a reasonable doubt.
Petitioner also contends that three other jurors, Newman, Branch and Dunlop, were either employed with relatives of the prosecutrix or acquainted with her family. He does not, however, demonstrate any actual bias on the part of any juror.
Jurors are presumed unbiased and qualified to serve. Linell v. State, 283 Ark. 162, 671 S.W.2d 741 (1984). The petitioner has the burden of proving that a juror was biased. Urquhart v. State, 275 Ark. 486, 631 S.W.2d 304 (1982). The mere fact that a juror may have been acquainted with the victim’s friends or family does not give rise to a presumption of bias. Petitioner here has not established that any juror was biased or that any actual prejudice arose from counsel’s decision not to challenge a particular juror.
Counsel did not object to the testimony of Officer Charles Cater concerning the chain of custody of the “rape kit” until after his testimony was fully completed. We held on appeal that the objection, which was made on the ground that Cater’s name had not been supplied in response to a motion for discovery, was not timely. Petitioner alleges that counsel was incompetent for not lodging the objection soon enough to prevent the testimony.
Cater was not the only witness to testify about the rape kit and petitioner has not shown that it could not have been admitted into evidence even without Cater’s testimony. As we noted on appeal, there was no real possibility of substitution since only one kit came from the hospital in Jefferson County and there was no evidence of tampering. Moreover, even if Cater’s testimony would have been stricken on timely objection and the rape kit not admitted as a result, there is nothing to indicate that the conduct of counsel in not making the objection undermined the proper functioning of the adversarial process. See Strickland v. Washington. There was ample evidence of petitioner’s guilt even without the evidence related to the rape kit.
Petitioner next alleges that the trial judge, the prosecutor and his attorney all entered the jury room during the jury’s deliberations because the jury requested additional instructions. He argues that counsel should have objected since he was not also taken into the jury room. The record does not reflect a request by the jury for further instructions, but petitioner has attached to his petition the affidavits of several persons who state that counsel and the judge entered the jury room.
Although petitioner argues that he was materially prejudiced by the fact that counsel and the court may have met with the jury without him, an evidentiary hearing is not required where a petitioner cannot say that counsel’s conduct created any prejudice. To grant postconviction relief on a conclusory allegation with no showing that counsel in any way impeded the fair adjudication of the accused’s guilt or innocence would undermine the purpose of our postconviction rule, which is to provide a remedy where counsel’s incompetence demonstrably affected the petitioner’s right to a fair trial.
Petitioner did not testify in his own behalf. He avers in this petition that he was willing to testify and counsel would not permit him to do so. The accused has the right to choose whether to testify at his trial. Moore v. State, 244 Ark. 1197, 429 S.W.2d 122 (1968). Counsel may only advise the accused in making the decision. Watson v. State, 282 Ark. 246, 667 S.W.2d 953 (1984). Nevertheless, a petitioner must do more than simply state that he was not allowed to testify. He must state specifically what the content of his testimony would have been and demonstrate that his failure to testify resulted in actual prejudice to his defense. To reiterate, there can be no finding of ineffective assistance of counsel without a showing of prejudice sufficient to undermine the proper functioning of the judicial process. Strickland v. Washington.
Furthermore, although petitioner first advances the bare allegation that counsel “failed to permit the petitioner to testify in his own behalf against his own wishes,” he goes qn to say as factual support for the allegation that he “expressed his willingness” to testify. It appears that counsel made a professional judgment that as a matter of trial strategy it would be improvident for petitioner to take the stand even though he was willing to do so. Another attorney when faced with the overwhelming evidence against petitioner might have assessed the exculpatory or mitigating value of petitioner’s testimony differently and advised him to testify, but this fact merely points out the diversity among attorneys when confronted with a difficult tactical decision. It is evident from counsel’s questioning in voir dire that she adopted at the outset of the trial the strategy whereby petitioner would remain silent. Even if it were unwise of counsel to have mentioned in voir dire the fact that petitioner would not testify, the decision to advise a client not to take the stand is a tactical one within the realm of counsel’s professional judgment, and matters of trial tactics and strategy are not grounds for postconviction relief. Watson v. State; Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1973). Neither mere error on the part of counsel nor bad advice is tantamount to a denial of a fair trial. Hayes v. State, 280 Ark. 509, 660 S.W.2d 648 (1983).
Finally, petitioner asserts that the errors and omissions of counsel were "cumulatively prejudicial.” This Court does not recognize cumulative error in allegations of ineffective assistance df counsel. Guy v. State, 282 Ark. 424, 668 S.W.2d 952 (1984); Henderson v. State, 281 Ark. 306, 663 S.W.2d 734(1984).
Petition denied. | [
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Jack Holt, Jr., Chief Justice.
The central issue in this case is whether the contract in question is governed by the laws of Tennessee or those of Arkansas.
The parties entered into a contract which called for the appellee, St. Charles Custom Kitchens of Memphis, Inc., (hereinafter, “St. Charles”) to install a custom kitchen in the appellant’s home in Blytheville, Arkansas. St. Charles is a Tennessee corporation. A disagreement arose between the parties as to the final contract price, the contract terms and the performance required. The appellant paid roughly two-thirds of the contract price to St. Charles but refused to pay the remaining amount, claiming that the materials and workmanship were not satisfactory. St. Charles began sending statements to the appellant which included late charges, in an effort to collect the balance remaining. When the appellant continued to refuse to pay, St. Charles filed this lawsuit.
In its complaint for money damages St. Charles alleged that the contract was governed by Tennessee law. The appellant answered, alleging breach of contract; usury, triggered by the late charges; and failure to comply with the Wingo Act which requires foreign corporations who do business in Arkansas to register with the Secretary of State. The trial court held that the agreement was a Tennessee contract and denied the appellant’s motion for a directed verdict, which was based on the defenses of usury and violation of the Wingo Act.
The jury awarded St. Charles $6,117.72. This appeal from the denial of the motion for directed verdict is before us under Sup. Ct. R. 29(l)(c) and (/).
The appellant raises two questions on appeal. He argues that the trial court erred in failing to grant his motion for directed verdict on the basis of usury and on the basis of the Wingo Act. Since both questions initially require a determination as to which state’s law governs the contract, that issue will be discussed first.
In Grogg v. Colley Home Center, Inc., 283 Ark. 120, 671 S.W.2d 733 (1984), this court most recently addressed the question of what law governs the validity of a multistate contract. Citing an earlier decision, Cooper v. Cherokee Village Development Co., 236 Ark. 37, 364 S.W.2d 158 (1963), we discussed the three theories used in making this determination:
1) The law where the contract was made; 2) the law where the contract was to be performed in its most essential features; and 3) the law of the state which the parties intended to govern the contract. We noted, too, in Cooper a consistent preference for the law of the state that would make the contract valid rather than void. An exception to the application arises, however, when the issue of usury is involved and the laws of another state become a sham for charging a higher rate and avoiding the harsh penalty applied by our law.
Applying the Grogg analysis to the facts of this case, we find that under the first theory, the law where the contract was made, the sales contract was signed in Tennessee at St. Charles’ Memphis office. The appellant argues that a novation of the sales contract occurred in Arkansas when changes were made on the original blueprints. This argument is not persuasive however since the contract itself provided that it “cannot be altered or modified except in writing executed by the ‘Seller.’ ” The novation alleged by the appellant was based on an oral modification of the sales contract. In addition, the novation argument fails because it was not specifically pled by the appellant in the proceedings below. Novation is an affirmative defense which must be pleaded. Camfield Tires, Inc. v. Moseley, 253 Ark. 585, 487 S.W.2d 268 (1972), AR Civ. P Rule 8(c).
Under the second theory, the law where the contract was to be performed in its most essential features, both states are connected to the contract. Since the cabinets were installed at appellant’s Blytheville home, the majority of the contract was performed in Arkansas. However, the ordering of the materials and some of the work on the blueprints was apparently done out of St. Charles’ Memphis office. Payments on the contract were also split, with the initial payment made in Tennessee and the second payment in Arkansas.
The final test is the law of the state which the parties ihtended to govern the contract. The appellant came to Memphis to hire St. Charles and the contract states that it is not binding on the seller unless accepted at the home office in Memphis. On the other hand, Arkansas sales tax is used on the schedule of materials; St. Charles filed a lis pendens in Arkansas to secure the debt; and St. Charles charged a 10% late charge, the maximum allowable in Arkansas, even though the form statement provided for a Vá% per month late charge.
The situation in Grogg was similar in that two states, Oklahoma and Arkansas, had connections to the contract. That case involved an installment loan contract for the purchase of a mobile home. The mobile home was purchased in Oklahoma and delivered to Grogg in Arkansas. The majority of the negotiations, the signing of the documents and the down payment occurred in Oklahoma. However, Arkansas sales taxes were paid; there was a U.C.C. filing in Arkansas; the home was licensed and titled in Arkansas; the license fee charged was based on Arkansas licensing fees; and the insurance on the home was written in Arkansas. Nevertheless, this court held that Oklahoma law governed the contract inasmuch as “we will choose the law of the state that will make the contract valid rather than void”. In so doing, we stated:
In this case ... we find there are substantial connections to either Arkansas or Oklahoma to allow the laws of either state to govern the transaction and absent a showing of the usurious cloak we will choose the law which will uphold the contract’s validity. Such choice is based on a presumption that the parties intended to contract with reference to the law that would uphold, rather than invalidate, their contract, (citations omitted). In addition to this presumption we have the fact that Grogg without solicitation or any underhandedness on the part of the appellee sought out the Oklahoma place of business, all the negotiations for the purchase occurred in Oklahoma... all of the many documents were executed in Oklahoma, the primary contracts stated clearly the place of execution as Oklahoma, and on the face of the contracts the interest rate of twelve percent was obviously stated in clear, unambiguous terms. . . .
This is not a case of a wholly Arkansas contract where there has been an attempt to avoid the usury law by substituting the law of a state with no substantial connection with the contract. We have already noted the legitimate connections of Oklahoma to this contract and the parties intent. The appellant has made no showing nor does the evidence suggest a cloak of usury surrounding the transaction and neither was there any evidence of enticement, solicitation, overreaching or any unconscionable act by the appellees.
Here, as in Grogg, there are substantial connections to both states. The appellant, without solicitation or any underhandedness by the appellee sought out St. Charles at their Memphis office; the contract was signed in Tennessee; performance took place in both states; the contract stated that it was not binding unless accepted in Tennessee; and the 10% interest rate was clearly stated on the statements sent to the appellant by St. Charles. The appellant has also failed to demonstrate that “a cloak of usury” surrounded the transaction. Therefore, we choose the law of Tennessee, the law of the state that will make the contract valid rather than void.
We need not address the other issues raised by appellant in light of our holding. Arkansas usury law does not apply to a Tennessee contract. The Wingo Act, Ark. Stat. Ann. § 64-1201 (Supp. 1980), does not apply to out of state contracts. Brown Broadcast, Inc. v. Pepper Sound Studio, Inc., et al, 242 Ark. 701, 416 S.W.2d 284 (1967).
Affirmed. | [
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George Rose Smith, Justice.
The appellant was convicted of aggravated assault, unauthorized use of a vehicle, terroristic threatening, and attempted second-degree murder and was sentenced to a $1,000 fine and to consecutive prison terms totaling eight years. His only argument for reversal is that the trial judge was wrong in granting the State’s request that the voir dire examination of the jury be conducted in chambers, with the public (including the defendant’s father) being excluded. Our jurisdiction is under Rule 29 (1) (a).
In principle the case is governed by our holding in Commercial Printing Co. v. Lee, Judge, 262 Ark. 87, 553 S.W.2d 270 (1977), noted in 31 Ark. L. Rev. 543. There the defendant himself made the request that the voir dire be private. The news media, however, alertly and properly objected to their exclusion and brought the matter to this court for a declaratory decision. We concluded that the voir dire is an essential step in the trial and relied upon an early statute stating that “[t]he sittings of every court shall be public.” Ark. Stat. Ann. § 22-109 (Repl. 1962). Chief Justice Harris’s summation left no doubt about the court’s position:
As stated previously, we have only one question before us, viz., was the court’s order excluding the public and press from the voir dire valid? It is clear by what has been said that we have answered with an emphatic “No!”
The State, in seeking to defend the action of the court below, suggests that although the public and the press may be entitled to insist that criminal trials be open to everyone, the accused himself is not entitled to assert such a First Amendment right. The quick answer is that both the federal and state constitutions guarantee that “the accused shall enjoy the right to a speedy and public trial.” U.S. Const., Sixth Amendment; Ark. Const., Art. 2 § 10 (1874). The accused is obviously entitled to assert a constitutional right that is unmistakably for his protection. Prejudice resulting from the exclusion need not be shown. Sirratt v. State, 240 Ark. 47, 398 S.W.2d 63 (1966).
Reversed and remanded. | [
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Per Curiam.
The attorney general has filed a motion asking that the state be allowed to file a belated brief. The motion states that the attorney general received incorrect information as to when the brief was due. Our records show the attorney general’s office was, in fact, properly notified. Apparently, the assistant attorney general, who is now handling the case, did not personally receive that notice. We grant the motion but point out that we are not required to give the individual assistant attorney general assigned to a case notice. One reason is that those individuals sometimes change, as in this instance. It is the responsibility of the attorney general’s office to see that the person assigned to the case is aware of the briefing schedule of the particular case to which he or she is assigned. | [
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John I. Purtle, Justice.
The trial court held that the liability of a bank, on failure to timely answer a writ of garnishment, was limited by the provisions of Ark. Stat. Ann. § 31-507 (Repl. 1962) and that the foregoing statute limited liability to an amount not exceeding that which the bank would have been liable for up until the time of the answer. We think the trial court properly interpreted the statute and appellants’ arguments for reversal must fail.
A judgment creditor of a bank depositor served the bank with writs of garnishment on September 12 and 27, 1983. The second writ was served before an answer had been filed by the bank. The bank filed a single answer on October 6, 1983. This was timely for the second writ but tardy for the first one. The bank tendered the sum of $121.58 with its answer. By stipulation of the parties, this would have been the maximum amount of appellee’s liability had the answers been timely filed. The trial court interpreted the statute to limit a bank’s liability to the funds or property on hand up until the answer was filed even though the answer was untimely.
The question presented on appeal is the construction of Ark. Stat. Ann. § 31-507. We do not find, nor'have we been cited, any case previously construing this statute although it has been a law since 1913. Acts 1913, No. 113, as amended by Acts of 1923, No. 627. Prior to the separate legislation favoring the banks, a tardy answer dictated judgment against the garnishee for the amount of the plaintiff’s judgment against the original defendant. Ark. Stat. Ann. §31-512 (Acts of 1889, No. 115) (Repl. 1962).
The primary rule in the construction of statutes is to ascertain and give effect to the legislative intent. It is our duty so far as practicable to reconcile the different provisions of a statute to make them consistent, harmonious and sensible. Shinn v. Heath, 259 Ark. 577, 535 S.W.2d 57 (1976). The reason, spirit and intended purpose of the Acts of the General Assembly are basic guideposts in statutory construction. Berry v. Gordon, 237 Ark. 547, 376 S.W.2d 279 (1964). The first thing we do in construing a statute is to look at the language of the statute and give it its ordinary meaning. Hicks v. Arkansas State Medical Bd., 260 Ark. 31, 537 S.W.2d 794 (1976). It is our duty to give effect to the true intent of the General Assembly even though such intent has not been clearly expressed by the language employed. Steele v. Murphy, 279 Ark. 235, 650 S.W.2d 573 (1983).
Ark. Stat. Ann. 31-507 reads in part as follows:
If any garnishee, being a bank, savings bank, or trust company domiciled in this state . . . shall neglect to answer on or before such return day the said writ or any interrogatories which have been exhibited against it, the court or j ustice before whom such matter is pending shall enter judgment in general terms against such garnishee, and such general judgment shall be deemed to be for costs of the garnishment and for an amount not exceeding the full amount specified in the plaintiff’s judgment against the original defendant and also not exceeding the amount or value in which at the time when served and thereafter up to and including said return day such garnishee was indebted, or had in its hands or possession goods, chattels, moneys, credits and effects belonging to said original defendant ....
The critical language in the foregoing statute is, “for an amount not exceeding the full amount specified in the plaintiff’s judgment against the original defendant and also not exceeding the amount or value which at the time when served and thereafter up to and including said return day such garnishee was indebted, or had in its hands or possession goods . . . belonging to said original defendant.” We think the plain and ordinary meaning of the language in the foregoing statute was clearly intended to limit the amount of recovery against a garnishee bank to the amount which the bank owed the debtor up until the time the bank answered.
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Webb Hubbell, Chief Justice.
Appellant, Darryl Gaylor, was convicted of aggravated robbery, theft, and of being a felon in possession of a firearm and was sentenced to 60 years, fifteen years, and twelve years of imprisonment respectively, the sentences to run consecutively. Appellant argues that the trial court erred in refusing to suppress evidence seized incident to his warrantless arrest. We affirm.
On December 1,1983, atabout 10:00p.m., the Kentucky Fried Chicken of Mountain Home, Arkansas was robbed by a white male carrying a sawed off shotgun. The investigating officer determined the robbery must have been committed by a former employee. Appellant fit the description of the robber, was a former employee, and was known to be in need of money, so the police officers went directly to appellant’s residence. They Arrived at appellant’s house at about 10:27. The house was dark, and the officers received no response when they knocked. A neighbor told them he had seen appellant climb into the neighbor’s pick-up and then go into appellant’s house. The officers then entered Mr. Gaylor’s residence through an unlocked door after calling on a loudspeaker for appellant to come out. A bank bag, some cash, and a check were found in a back bedroom. One of the officers noticed the attic door slightly ajar and some loose attic insulation. Upon demand appellant then climbed down from the attic and was arrested.
Appellant argues that the evidence seized should have been suppressed because appellant’s arrest was not based on reasonable cause and was therefore illegal. We address first the legality of the arrest, second the legality of the entry and search of appellant’s home, and third the seizure of evidence incident to the arrest.
I
An officer may make an arrest where he has reasonable grounds for believing that the person arrested has committed a felony. Ark. Stat. Ann. § 43-403 (Repl. 1977). A.R. Crim. P. Rule 4.1. Reasonable cause is synonymous with the term "probable cause”. A.R. Crim. P. Commentary to Article IV following A.R. Crim. P. Rule 10.1. Probable cause, or reasonable cause, exists where the facts and circumstances within the arresting officer’s knowledge, and of which he had reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested. Coble v. State, 274 Ark. 134, 624 S.W.2d 421 (1981); McGuire v. State, 265 Ark. 621, 580 S.W.2d 198 (1979). The arresting officer testified that the investigation revealed the armed robbery had been committed by a former employee who fit appellant’s description. The officer stated he was aware of appellant’s prior criminal record. The officer further stated he knew that appellant had been a former employee and that appellant was in the area and needed money. The trial court found “there is reasonable cause to believe this defendant has committed a felony. . . .” Under the circumstances of this case, we affirm the trial court’s finding of reasonable cause for the arrest.
II
The United States Supreme Court has held that the Fourth Amendment of the Constitution of the United States prohibits police officers from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest absent exigent circumstances. Payton v. New York, 445 U.S. 573, (1980). See also Haynes v. State, 269 Ark. 506, 602 S.W.2d 599 (1980). Dorman v. U.S., 435 F.2d 585 (D.C. Cir. 1970), recently cited with approval in Welsh v. Wisconsin, _U.S__, 80 L.Ed.2d 732, 744 (1984), enumerates some exigent circumstances which may render a warrantless entry to arrest reasonable: 1) the commission of a grave offense, 2) belief that the suspect is armed, 3) a clear showing of probable cause to believe the suspect committed the crime, 4) strong reason to believe the suspect is in the premises being entered, and 5) likelihood that the suspect will escape if not swiftly apprehended. A sixth exigent circumstance to be considered is the danger of destruction of the evidence. See United States v. Santana, 424 U.S. 38 (1976). In addition, the peaceable entry of the premises may be considered in determining the reasonableness of police action. In the instant case the grave offense of aggravated robbery was involved. The officers believed appellant was armed because the robbery had occurred less than half of an hour prior to the arrest. All events occurred after ten o’clock at night. The officers had reason to believe appellant was in his house because a neighbor had just seen him climb into the neighbor’s pick-up, get out, enter the house, and turn a light on and off. Another officer testified he thought he heard someone moving in the house while he was standing outside the backdoor. The door to the house was unlocked, and peaceful entry was made. The trial court found exigent circumstances which, coupled with the finding of reasonable cause, formed a basis for a lawful warrantless arrest. All presumptions are favorable to the trial court’s ruling on the legality of the arrest, and the burden of demonstrating error rests on the appellant. Reed v. State, 280 Ark. 316, 657 S.W.2d 557 (1983). Under the facts of this case, the trial court did not err in finding the entry and arrest were lawful.
Ill
A search and seizure made contemporaneous to a lawful arrest is valid if the accused is on the premises and the officer has reason to believe the premises contain things which are: 1) subject to seizure, 2) connected with the offense for which the arrest is made, and 3) likely to be removed or destroyed before a search warrant could be obtained. A.R. Grim. P. Rule 12.5. While walking through the residence looking for appellant, the officers found in plain view and seized a bank bag, some cash, and a check identified as having come from Kentucky Fried Chicken. The officers also seized some clothing and three shotgun shells. Both probable cause and exigent circumstances existed for the arrest independent of the search. Since the arrest and search were substantially contemporaneous, we conclude there was no error, and the objects seized were properly admitted into evidence.
Affirmed. | [
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Per Curiam.
Appellant, Wayne Blackmon, by his attorney, has filed for a rule on the clerk.
His attorney, Tony Sherman, admits that the record was tendered late due to a mistake on his part.
We find that such an error, admittedly made by the attoraey for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5,1979, In Re: Belated Appeals in Criminal Cases.
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Webb Hubbell, Chief Justice.
This is the second appeal involving an ejectment suit initiated by appellee, Citizens Bank of Tillar, against J. C. Cash. In the first appeal we affirmed the ejectment of Mr. Cash from property owned by appellee. J. C. Cash v. Citizens Bank of Tillar, 277 Ark. 449, 642 S.W.2d 318 (1982). Mr. Cash, however, continued to go on the property, and after a hearing on May 13, 1984, the trial court prohibited Mr. Cash and his wife, Bobbie June Cash, appellant, from going on the property. Appellant argues reversible error because she was not served notice of the hearing. The appeal is affirmed under Rule 9 (e) (2) of the Rules of the Supreme Court of Arkansas for appellant’s failure to abstract any of the record.
Rule 9 requires the abstract of the record to be an impartial condensation of the pleadings, proceedings, facts, and documents in the record. Appellant totally failed to comply with the rule and in place of an abstract provided only the following:
Writ of Assistance: (T.3) Issued April 25, 1984. Order: (T.4) Motion by J. C. Cash to permanently enforce the Writ of Assistance issued April 25, 1984. Order dated May 24, 1984. Notice of Appeal: (T.6) Entry date May 3, 1984.
The Order from which appellant seeks relief is not even abstracted. We affirm. Fair v. Fair, 272 Ark. 114, 612 S.W.2d 123 (1981); Manes v. M.O.V.E., Inc. et al, 261 Ark. 793, 552 S.W.2d 211 (1977).
Affirmed. | [
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FrauEnThal, J.
The defendant, Cato Douglass, was tried upon an indictment charging him with the larceny of a horse; and the jury returned a verdict of guilty, .and assessed his punishment at one year in the penitentiary. He seeks a reversal of this conviction upon the following grounds: (1) because the venue was not proved'; (2) because the evidence is not sufficient to sustain the verdict; and (3) because of newly discovered evidence.
The evidence tended to prove that the horse that the defendant is charged with having stolen was the property of W. M. Paup; that it was permitted to run on the range near what is called Clear Lake in Miller County, Arkansas, and that it was last seen at that place in May, 1908. Shortly after that there was an overflow in that portion of the county, and either just before or during the time of this overflow the horse disappeared. The overflow continued until July following, and the horse was next found in October or November, 1908, in the possession of the defendant, near the locality called Lost Prairie in Miller County, and about ten or twelve miles from the range where the horse had been accustomed to run. When found in the possession of the defendant, the mane of the horse had been cut off, his tail pulled out, and he had been altered, and branded dimly on the shoulder; and all this had been done after the horse had -disappeared from the range in May. The defendant claimed to be the owner of the horse, and that he had owned him from the time he was foaled. A number of witnesses testified on the part of the State that the horse was the property of Paup, and had disappeared in May; and a number of witnesses testified on behalf of the defendant that the horse was the property of the defendant, and raised by him. One of the witnesses testified that when he discovered the horse in the possession of defendant in the fall of 1908 and told him in effect that it was Paup’s horse, the defendant became angered at him, and made demonstration to fight him. It is not deemed necessary to give any further or in any detail the various facts and circumstances adduced in evidence; and the above only presents the general nature of the case made out against the defendant. The question as to whether the testimony relating to the claim of ownership made by defendant was bona tide or fabricated was peculiarly within the province of the jury to determine; and we cannot say that all the facts and circumstances adduced in evidence are not sufficient to sustain the finding of the jury against the defendant’s claim of ownership and his good faith in making that claim.
It is urged by the defendant that the venue of the offense in Miller County is not proved. It has been held by this court that the venue of the crime may be proved by circumstantial evidence, and need not be proved by direct evidence; and it may be proved by a preponderance of the evidence. Bloom v. State, 68 Ark. 336; Wilson v. State, 62 Ark. 497; Wilder v. State, 29 Ark. 293.
The testimony in this case tends to show that the horse ranged in Miller County near Clear Take when it was missed, and that afterwards it was found in the possession of the defendant about 10 to 12 miles distant in Miller County. This was sufficient evidence to justify a finding that the horse was taken, driven or carried away in Miller County.
It is contended on behalf of the defendant that there is not sufficient evidence to sustain the conviction herein for the reason that the evidence does not show a felonious and criminal intent on the part of the defendant. It is urged that the defendant claimed the property as his own, and, even if he was mistaken in that claim of ownership, his possession of the property would not be sufficient evidence of a criminal intent to steal. This is true if his claim of ownership was made in good faith. In order to constitute larceny, the taking must be done with felonious intent; the taking of the property and its possession is only a fact, and in itself it is not sufficient to raise a presumption of a guilty intent; and, standing alone, it would not be sufficient to sustain a conviction of larceny. Mason v. State, 32 Ark. 238; Gooch v. State, 60 Ark. 5; Sutton v. State, 67 Ark. 155; Jones v. State, 85 Ark. 360.
But the possession of property recently stolen does raise a presumption tending towards guilt, and is a link in the evidence against the accused; and when that possession is unexplained, it is a further link in the evidence of guilt against the accused to go to a jury for its consideration. Boykin v. State, 34 Ark. 443; Blankenship v. State, 55 Ark. 244; Denmark v. State, 58 Ark. 576; Gunter v. State, 79 Ark. 432.
When the stolen property is found in the possession of the accused, and he makes a distinct assertain of title and ownership thereto, it is evidence that he intended to convert the same to his own use and to deprive the owner thereof. If he makes an explanation of his possession by claiming to be the owner thereof, then the question to foe determined is whether such claim of ownership is made honestly and in good faith. If it is made honestly and in good faith, then, no matter how mistaken the accused may be, he would not have that felonious intent from which the larceny ■could be inferred. But, on the contrary, if the explanation of the possession and the claim of ownership of the property “involve a falsely disputed identity or is based on fabricated testimony, then the inference of his guilt is strengthened,” and his complicity in the larceny is sufficiently established. Shepherd v. State, 44 Ark. 39; Wharton’s Criminal Evidence, (8th Ed.) § 758.
In the case at bar the defendant claimed to own the horse and to have owned and been in possession of it from the time it was foaled; and he introduced a number of witnesses who testified in accord with him. If -this testimony is true, the defendant is not guilty. But if this testimony is fabricated and false, then it not only sustains -the contention of the State that the horse was owned by Paup, but it further sustains the contention that the defendant had the felonious intent to wrongfully convert the same to his own use and to deprive the true owner thereof. These witnesses appeared before the jury, and all the facts and circumstances of this case were detailed before them. It was peculiarly their province to pass upon these questions, and this they have done.
In the course of its instructions the- lower court said to the jury:
“Gentlemen of the jury, if you find from the evidence in this case that this was the property of Mr. Paup, but that this party took this horse through an honest mistake, believing that it was his property, though you may believe that it was the property of Mr. Paup, then you should acquit the defendant.”
The jury was the judge of the credibility of defendant and the witnesses who testified in his behalf. To their testimony the jury did not give credence. The jury must have found that the horse was the property of Paup; that the defendant took the horse and carried it away, and did not raise it as he claimed; that he did not take it through any mistake, but that he set up a false claim of ownership knowingly, and fabricated testimony to sustain that false claim.
We have examined the evidence, and we cannot say that there is not sufficient evidence to sustain that finding of the jury. It follows, therefore, that there is sufficient evidence to sustain the verdict.
It is contended by the defendant that since the trial of the cause he discovered certain evidence material to his defense. But this evidence is wholly and entirely cumulative to that introduced by him, or simply contradictory of certain testimony on the part of the State; and therefore it is not sufficient ground for a new trial. White v. State, 17 Ark. 404; Wallace v. State, 28 Ark. 531; Campbell v. State, 38 Ark. 498; Walker v. State, 39 Ark. 221; Redman v. State, 40 Ark. 445; Foster v. State, 45 Ark. 328; Hudspeth v. State, 55 Ark. 324; Maxey v. State, 66 Ark. 523; Jones v. State, 72 Ark. 404.
A great number of witnesses appeared and testified in this case, both on the part of the prosecution and of the defense. Every fact and phase of the case was testified to by numerous witnesses, and this alleged newly discovered evidence could shed no further light on the case. The defendant has had a full and fair trial, and we cannot say that the verdict of the jury is not sufficiently sustained by the evidence.
Judgment affirmed.
Battle, J., not participating, absent. | [
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FrauEnthal, J.
The plaintiff, Joe Siggs, instituted this suit against the defendant, the Warren Vehicle Stock Company, to recover damages in the sum of $2,500 for a personal injury which he alleged was received by him through the negligence of the defendant, while he was in its employ. The evidence tended to establish the following facts:
The defendant owns and operates a sawmill plant; and on January 6, 1907, it employed the plaintiff to perform various duties about the plant, and for five or six days the plaintiff worked as second off-bearer at the saw, and for three or four days prior to the day of the injury and on the 23d day of. Januar)', 1907, the day of the injury, he was employed as first off-bearer at the saw. He was 51 years old, but an awkward and inexperienced workman. He was ignorant of the manner of doing the work of first off-bearer at the saw, and had never done service in that employment before. S'ome years before the injury involved in this case was received, his eyesight became greatly impaired, so that at the time of the injury herein his sight was very defective. When the defendant’s foreman employed him to do the work of first off-bearer, the plaintiff told him that his eyesight was defective, and the foreman assured him that he could do the work safely, and that he only wanted him to do that work for a short time when he would get another man. The evidence also tended to show that the foreman knew of plaintiff’s inexperience in the performance of the duties of this work.' The plaintiff testified that he was not instructed as to the manner in which he should do the work of first off-bearer, and that he was not warned of the dangers incident to the work.- In the-performance of the duties of this work the rule was that the workman should not put his hands within eighteen inches of the saw and should not take hold with .his hands of slabs that were as short as six feet; but the plaintiff received no instructions as to this. On the day of the injury the plaintiff was working at a circular saw at the rear of which was a circular splitter. On this occasion six-foot hickory logs were being sawed into slabs, and as a slab was passing through the saw it either got caught between the splitter and saw or was falling, and the plaintiff attempted to take -hold of it with his hand. His hand missed the slab and came in contact with the saw, which cut off two of his fingers.
Several instructions were given at the request of the plaintiff, amongst which was the following:
“3. The court instructs you that if you believe by a preponderance of the evidence in this case that plaintiff, Joe Siggs, was employed by defendant, Warren Vehicle Stock Company, through any of its agents having authority to employ laborers, and that he was assigned to perform the services of first off-bearer at defendant’s mill plant, and that the said services were attended with great or unusual dangers, and that plaintiff, Joe Siggs, on account of weakness of his eyesight or from any other mental or physical defect, was incapable of detecting and appreciating the dangers and perils incident to the employment, and from weakness of his eyesight or other mental or physical defect he was not conscious of the constant danger he was in, and was not aware of how close he placed his hands to the circular saw, or other dangerous machinery, and that he did not know he was unfit to discharge the duties to which he was assigned, on account of his weak eyes or other infirmity, and that defendant, Warren Vehicle Stock Company, discovered his unfitness to do the work around such dangerous machinery, or could have discovered plaintiff’s unfitness for the service by using that amount of care and oversight which a prudent man would exercise in his superintending control over his servants engaged in .the discharge of duties attended with great or'unusual dangers, and that defendant, after discovering plaintiff’s unfitness for the service, or after it could have discovered his unfitness for .t-He place by a proper exercise of its superintending control over him, in that degree exercised by prudent business men over their servants engaged in duties attended with great or unusual dangers, and did not remove him from the place of danger, nor notify him of his unfitness for the work, and of the danger he was in, but permitted him to remain there, under the circumstances, until he was injured, as alleged in the complaint, on account of defendant’s neglect of such duty, then the court instructs you that for such neglect defendant is liable, and it makes no difference if plaintiff was guilty of contributory negligence in the case of his injury under the circumstances.”
To the giving of this instruction the defendant duly saved its exceptions. A number of instructions were given at the request of the defendant, amongst which was the following:
“15. The defendant has pleaded that the accident happened by reason of the negligence of the plaintiff himself or his fellow-servants. The law is that one who contributes to his own injury cannot recover damages therefor. If, therefore, you should find from the evidence that the plaintiff was guilty of any negligence at or before and near the time of the injury, which contributed to the injury, your verdict will be for the defendant, even though you may also find that the defendant was also guilty of negligence in regard thereto, provided they did, not discover the danger to the plaintiff beforehand in time to prevent the injury.”
The jury returned a verdict in favor of the plaintiff for $200; and from the judgment entered thereon the defendant brings this appeal.
It is urged by the defendant that- the injury which was received by the plaintiff was due to the risk which is ordinarily incident to the service in which he was engaged, and which was therefore assumed by him; and also that the undisputed evidence shows that the injury was occasioned by the negligence of the plaintiff.
It is true that usually the servant assumes the risks that are ordinarily incident to the service in which he is employed. But this is not true of a servant who, because of his inexperience or some known physical infirmity, does not know or appreciate the dangers of the service. It is the duty of the master to see that the servant is competent for his position. There is an obligation resting on the master to see that the servant possesses the ordinary mental and physical qualifications which will enable him to do the work without exposing him to greater dangers than the work necessarily entails. If the master knows that the servant by reason of his ignorance or inexperience is unable to appreciate the dangers of the employment, it is his duty to give him such instructions and warning of the dangers incident to the work as will reasonably enable such servant to understand the duties of the work required and its perils.
As is said by Judge Battle in the case of St. Louis, I. M. & S. Ry. Co. v. Inman, 81 Ark. 591: “It would be a breach of his duty to expose a servant who by reason of his youth or inexperience is not aware of or does not appreciate the danger incident to the work he. is employed to do or the place he is engaged to occupy, without first giving him such instructions and caution as would, in the judgment of men of ordinary minds, understanding and prudence, be sufficient -to enable him to appreciate the dangers and the necessity for the exercise of due care and caution and to do the work safely, with proper care on his part.” Fones v. Phillips, 39 Ark. 17; Fort Smith Oil Co. v. Slover, 58 Ark. 168; Ford v. Bodcaw Lumber Co., 73 Ark. 49; King-Ryder Lumber Co. v. Cochran, 71 Ark. 55; Arkadelphia Lumber Co. v. Henderson, 84 Ark. 382; Arkansas Central Rd. Co. v. Workman, 87 Ark. 471.
The servant does not assume the risks of the employment if by reason of his inexperience he is not acquainted with the dangers that are incident thereto, or by reason of his known physical infirmity he is not able to observe such dangers. What might be obvious and patent to a man whose vision is unimpaired is not necessarily so to a man whose eyesight is very defective. What therefore would be an act of contributory negligence on the part of the one might not under the circumstances of the case be such negligence on the part of the other, if on account of the known physical infirmity the danger was not obvious and patent to him. And therefore, if the master under such circumstances employs such a servant and fails to instruct and warn him, the master is guilty of negligence. Emma Cotton Seed Oil Co. v. Hale, 56 Ark. 232; St. Louis, I. M. & S. Ry. Co. v. Touhey, 67 Ark. 209; Southern Cotton Oil Co. v. Spotts, 77 Ark. 458; West ern Coal & Mining Co. v. Burns, 84 Ark. 74; 1 Labatt on Master and Servant, §§ 240, 252; 26 Cyc. 1177.
In this case there was evidence tending to prove that the defendant knew of the inexperience of the plaintiff to do the work required of him in this employment, and also knew that by reason of his defective eyesight the plaintiff would incur greater perils in the performance of this service at the saw; and with this knowledge the defendant failed to instruct the plaintiff or warn him of the dangers of the service. On the contrary, there is evidence tending to prove that defendant’s foreman assured the plaintiff that he could safely perform the service with the defective eyesight. The plaintiff with his inexperience had a right to rely on this assurance that it was safe for him with his defective eyesight to do this work without being held to have assumed the risk thereof. Fordyce v. Edwards, 60 Ark. 438; King-Ryder Lumber Co. v. Cochran, 71 Ark. 57; Dalhoff Construction Co. v. Luntzel, 82 Ark. 82.
Under the circumstances of this case, therefore, we think there was sufficient evidence from which the jury might find that the defendant was guilty of negligence, by reason of which the injury was incurred by plaintiff.
But it is the well settled law of this State that the negligence of the master does not relieve the servant of using due care; and if his own negligence directly contributed to the injury, he cannot recover, although the master was also guilty of negligence. Here there is no doctrine of comparative negligence. If both parties have been guilty of negligence, the law will not undertake to apportion the degree of negligence' between them; but if the plaintiff was guilty of any negligence which proximately contributed to the injury, he cannot recover. Southwestern Tel. & Tel. Co. v. Beatty, 63 Ark. 65; Walker v. Louis Werner Sawmill Co., 76 Ark. 436; Southern Cotton Oil Co. v. Spotts, 77 Ark. 458; St. Louis, I. M. & S. Ry. Co. v. Jackson, 78 Ark. 100; Harris Lumber Co. v. Morris, 80 Ark. 261; 21 Am. & Eng. Ency. Law, 498.
In this case the question of whether the plaintiff used due care under the circumstances or was himself guilty of contributory negligence was peculiarly a question for the jury to determine. There was evidence tending to show that the plaintiff did not use such care as an ordinarily prudent person would have used under similar circumstances, and although with similar impairment of eyesight and inexperience. At least, “fair minded, reasonable and capable men may honestly draw different conclusions from the facts” as to whether the plaintiff was guilty of contributory negligence. Therefore, the question as to whether or not the plaintiff was guilty of contributory negligence should have been submitted to the jury under all the facts and circumstances of the case.
But in the above instruction number 3 given at the request of the plaintiff the court fold the jury: “then the court instructs you that for such'neglect defendant is liable, and it makes no difference if plaintiff was guilty of contributory negligence in the case of his injury under the circumstances.” This was prejudicial error. And the effect of this error was not removed by-the giving of the above instruction number 15 at the request of defendant. This latter instruction seems drafted to present the doctrine of negligence on the part of the defendant after a discovered peril. But there is no evidence in the case upon which to base such an instruction; and it was therefore abstract, and should not have been given. It does not present the contrary of the erroneous statement relative to contributory negligence set out in said instruction number 3 given at the request of plaintiff. We find no other error in the case.
On account of the giving of said instruction number 3 on the part of plaintiff, the judgment will be reversed, and the cause remanded for a new trial. | [
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Battue, J.
James York was indicted at the August, 1908, term of the Bradley Circuit Court for murder in the first degree committed by killing Homer McLain, and was tried in the Dallas Circuit Court, after a transfer of the cause to that court, on the 23d day of June, 1909, and convicted of voluntary. manslaughter, and his punishment was fixed at three years’ imprisonment in the State penitentiary.
In impaneling the jury to try the defendant the trial court caused the panel of twenty-four jurors, selected by jury commissioners, to serve at the- June, 1909, term, of the Dallas Circuit Court, to be sworn, over the objection of -the defendant, to answer questions touching their qualifications to serve as jurors in the trial of the defendant, and asked the whole panel “if they believed in capital punishment,” and five answered that the)' did not, and were excused from serving. The court then ordered the sheriff to summon five bystanders to take the places of the five jurors excused, which was done, and the five talesmen, over the objection of the defendant, took the places of -the five jurors who had been excused, and the names of the panel, as thus composed, were written upon separate slips of paper, and placed in a box, and the names of the jurors selected to serve as a jury in the case, were drawn from the box in the 'manner provided by the statute.
Did the court commit a reversible error in excusing the five jurors and causing five others to be summoned and substituted in their places?
In Meyer v. State, 19 Ark. 156, a juror was challenged by the defendant for cause. The challenge was overruled. The defendant excepted to the ruling of the court, and stood upon his challenge, and he was sworn as a juror in the case. The court said: “After his competency was determined by the court, the prisoner did not get clear of him by peremptory challenge, but, permitting him to be sworn as a juror, rested upon his exception to the decision of the court, which he had a right to doand held that the trial court erred in overruling the challenge and for such error, in part, reversed the judgment of the circuit court, and allowed ■ the defendant a new trial. Since that time this court has uniformly held that if, after a court has erroneously overruled a challenge of a juror .for cause, the defendant elected to challenge him peremptorily, he could not avail himself of the error, unless he had exhausted his peremptory challenges, thereby holding that he could protect himself against such error, and would not be allowed to suffer by so doing if he exhausted his peremptory challenges before the-completion of the jury. Benton v. State, 30 Ark. 328; Wright v. State, 35 Ark. 639; Polk v. State, 45 Ark. 165; Caldwell v. State, 69 Ark. 322.
In Mabry v. State, 50 Ark. 492, the regular panel of jurors was exhausted, and the jury in the case remained incomplete, and bystanders were summoned to complete it, and, over the objection of the defendant on account Of the manner in which- they were summoned, were sworn as members of the jury. The court said: .“When such objection is made, and the record fails, as in this case, to show that the defendant exhausted his peremptory challenges, it is unavailing in the appellate court, because the "failure to challenge is an implied admission that the jurors are unobjectionable. * * * * The right of peremptory challenges is conferred as a means to reject, not to select, jurors. The object of the law is to obtain a jury impartial to the prisoner and the State alike. Neither has a right to the services of any par ticular juror. Hurley v. State, 29 Ark. 22. If all .the talesmen had been challenged by him, and he had then been forced to accept a juror without the privilege of exercising his right of peremptory challenge, he might have cause to complain. But he has voluntarily taken his ohance of acquittal at .the hands of jurors whom he might have rejected, and he must abide the issue.”
The record in the case at bar does not show that appellant exhausted his peremptory challenges, and according to the principles upon which the Mabry case rests he has no right to complain.
During the progress of the trial in this case and after all the evidence had been adduced and the instructions had been given by the court, and the opening arguments of both parties had been made by counsel, the Hon. H. W. Wells, Circuit Judge of the Tenth Judicial Circuit of the State of Arkansas, and the judge of the Dallas Circuit Court, then presiding in the trial, and the Hon. A. B. Grace, Circuit Judge of the Eleventh Judicial Circuit of the State of Arkansas, by an agreement spread upon the record, exchanged circuits, the former vacating the bench and the latter immediately occupying it and presiding during the remainder of the trial, and until the arguments were completed. The motion for new trial was overruled, and the prisoner was. sentenced, and judgment rendered, and an appeal was prayed and granted.
Did the judges commit a reversible error in exchanging circuits at the time they did ?
Section 22 of article 7 of the Constitution of this State provides: “The judges of the circuits may temporarily exchange circuits or hold courts for each other, under such regulations as may be prescribed by law.” And section 1321 of Kirby’s Digest says: “The judges of the circuit courts may by agreement temporarily exchange circuits or hold courts for each other for such length of time as may seem practicable and to the best interest of their respective circuits and courts.” And section 1322 provides: “The judges exchanging as aforesaid shall have the same powers and.authority while holding courts for each other as the judge for the circuit in which term or terms shall be held.”
This case is unlike Stokes v. State, 71 Ark. 112, where the judgment of the circuit court was reversed because the trial judge lost control of the proceedings of the court by his temporary absence.- In .this case .the proceedings of the court were at all times under the direct supervision of a judge fully authorized to control them. We are unable to see that appellant could have been prejudiced by the exchange of the judges unless it be in the decision of questions of evidence. But this could not affect the legality of the exchange, as the witnesses whose testimony may be in question in such cases may be recalled and required to testify what they had stated in the trial, and go through the same course of examination. Bullock v. Neal, 42 Ark. 278. In the .case cited this court held .that “when the judge at a trial becomes sick and unable to proceed after the evidence is all in and the instructions have been given to the jury, the trial should proceed under a special judge, before the same jury, and without rehearing the testimony.” That case is decisive in this, the judge in the case cited being a special judge and in this case a regular judge vested by the Constitution and the statute with the same powers and authority as the judge of the Dallas Circuit Court had.
In the trial of appellant the court instructed the jury, over the objection of the appellant, in behalf of the State, 'in part, as follows:
“8. In ordinary cases of one person killing another in self-defense it must appear that the danger was so urgent and pressing that, in order to save his own life or to prevent his receiving great bodily injury, the killing of the' other was necessary, and it must appear also that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further contest before the mortal blow or injury was given.
“9. In order to justify the taking of life in self-defense, the party must employ all means within his power, consistent with his safety, to avoid the danger and avert the necessity.”
And at the request of the defendant instructed the jury, in part, as follows:
“7. The court instructs the jury that if you find from the •evidence in this .case that the defendant, Jim York, was in his place of business or residence, or was in a place' of business where he was in control, in the town of Vick, in Bradley County, Arkansas, when the killing occurred, as alleged in the indictment, if you find that the killing so alleged did occur, then the court instructs you that the defendant, Jim York, had a right to be in his place of business or residence, and if you find from the evidence that the deceased, Homer McClain, by himself or in company with others, came into the defendant’s place of business or residence with the intent of assaulting the defendant or offering him personal violence, or, being in his place of business or residence, formed the intent of assaulting him or offering him personal violence, and by overt acts or words made it appear to defendant that he was in danger of losing his life or of receiving' great bodily injury, or that he was about to be assaulted at the hands of deceased, Homer McClain, or at the hands of deceased in company with others, then the court instructs you that the deceased, Homer McClain, and those acting with him, if any, were trespassers, and the defendant had the right to defend himself and act upon the danger as it appeared to him, whether the danger was real or not; and if you believe from the evidence, or if you have a reasonable doubt from the evidence as to whether the deceased, Homer McClain, came to the defendant’s pláce of business or residence with the intent, or, being in the defendant’s place of business or residence, formed the intent of assaulting the defendant or offering him personal violences and by any overt act or words gave defendant reasonable grounds to believe, from his point of view, that he was in danger of being assaulted or receiving personal violence at the-hands of deceased, or at the hands of deceased in company with others, and that defendant, while honestly defending himself against such assault or proffered personal violence, and without fault upon his part, killed the deceased by stabbing him, the killing would be justifiable, and under those circumstances you must acquit the defendant.”
Appellant contends that the instructions given in behalf of the State conflict with that given at his request, and should not have been given. Were they prejudicial? All of them were based upon evidence. Those given in behalf of the State were general, and that given at the instance of the defendant was specific, applying the law to the facts as defendant contended they were, and directing the jury to acquit in the event they found' the facts- to be as stated in the instructions given at the request of the defendant. On the other hand, those given in behalf of the State stated general rules of law without any directions as to the verdict. Construed.as a whole, as they should have been, we are unable to see how those given in behalf of the State could have prejudiced the defendant.
The evidence was sufficient to sustain the verdict.
Judgment affirmed. | [
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Battue, J.
Thos. D. Crawford brought this action against Sawyer & Austin Lumber Company to recover damages for per sonal injuries sustained by him as a result of the negligence of the defendant. The substance of the contents of his complaint is correctly stated in the abstract of appellant as follows:
“The defendant is a corporation, owning and operating a saw mill plant at Pine Bluff, Arkansas. West of its principal saw mill, and separated from it by a large mill pond, the defendant operates a sash and door factory. Extending from the sash and door factory, and running in an easterly direction and curving around the northern boundary of the mill pond, was one of the railroad tracks of the Pine Bluff & Western Railway Company. This track passed in close proximity to the principal saw mill and also near the machine shop, the track passing just north of both. This track was generally used by the employees of the company in going from the sash and door factory to the principal saw mill, the machine shop and the office of the company. Plaintiff was the superintendent of the sash and door factory, and was earning a salary of $2,000 per year. On the morning of the 23d of October, 1905, he started from the door factory to the machine shop, and proceeded over the track mentioned. When opposite the saw mill, defendant negligently opened a valve to blow out the boilers, which so enveloped the plaintiff in steam and vapor as to prevent him from seeing in any direction, thereby confusing him and blinding him as to his surroundings and preventing him from getting off the track with safety, as the track at this point was on a high embankment with a ditch on both sides. The blowpipe was negligently constructed in -that it directed the steam immediately across the track. While plaintiff was trying to get out of the steam, he was negligently struck by a flat car propelled by the defendant’s engine, and knocked down upon the track, the wheels of the car so bruising and mutilating his left foot as to cause the loss of all of his toes on that foot and to render him a cripple for life. By reason of the enormous quantity of steam and vapor enveloping the plaintiff, he was prevented from seeing the train, and the operators of the train were prevented from seeing him. The damages were laid at the sum of $15,000.”
Defendant answered and denied material allegations of the complaint, and alleged that plaintiff was guilty of contributory negligence.
After hearing all the evidence- adduced by the parties, the court instructed the jury to return a verdict in favor of the defendant, which they did, and plaintiff appealed.
The only question for us to decide is, was the evidence adduced by the plaintiff legally sufficient to support a verdict in his favor? In deciding this question we should give the testimony in his favor its strongest probative force, and accept that view of it most favorable to him. Catlett v. Railway Co., 57 Ark. 461; Rodgers v. Choctaw, Oklahoma & Gulf Railroad Co., 76 Ark. 520; Wallis v. St. Louis, Iron Mountain & Southern Railway Co., 77 Ark. 556; Scott v. St. Louis, Iron Mountain & Southern Railway Co., 79 Ark. 137; Evans v. St. Louis, Iron Mountain & Southern Railway Co., 87 Ark. 628.
Pursuing this course, we find the facts in this case as follows :
“The Sawyer & Austin Lumber Company operates a large saw mill plant near the city of Pine Bluff. Some distance west of this plant and separated from it by a mill pond was a sash and door factory belonging to the same company, but operated as an entirely distinct and separate business, except as hereinafter stated. The employees of the door factory had nothing in common with the employees of the saw mill, and, so far as the record shows, the respective service of the two sets of employees never brought them in any kind of personal contact or relationship. The saw mill was in charge of one superintendent, and the door factory was in charge of another, and, while both superintendents were under a common master, there was no co-service between them, and neither had anything whatever to do-with the employees under the other.
“According to the testimony of the defendant, the company had established a roadway and walk from the door factory around the southern end of the ■ pond to the company’s office, which was located east of the saw mill. As a matter of fact, a railroad track extended from the office and curved partially around the saw mill plant and the north end of the pond. It was known as the pond track. Various employees, especially those of the door factory, often used this track as a walkway, in going to and returning from their work and in going from the door factory to the office of the company, with the full knowledge and acquiescence of the company. Plaintiff testified that he invariably used it two and sometimes three and four times a day, as the occasion demanded. The company operated its log trains on this track.
“The saw mill was run by steam, while the door factory was operated by electricity. The boiler and engine rooms of the saw mill were located north of the saw mill plant, and in close proximity to the railroad track. Electricity was generated in the engine room by the same power which ran the saw mill, and was conducted through wire cables to the door factory. Except for this connection between the two, the door factory was as separate from and independent of the saw mill as it would have been if located in another city or in a different part of Pine Bluff.
“A blow-off pipe extended from the boiler room to within five or six feet of the track, and pointed directly across the track. The location and direction of this pipe when blowing off menaced the safety of'any one passing along the railroad track, for in blowing off the steam it went with great force directly across the track. To avoid danger, the superintendent of the saw mill, who had absolute power in the premises, contented himself by giving positive instructions and establishing a rule that the boilers were not to be blown off in the day time, unless it was imperative, and that they were never to be blown off until the man in charge of the boilers had first looked to see if any person was in a position to be injured. The superintendent himself testified to these instructions and to this rule, and the testimony of Henry Washington, the employee in charge of the boilers, was to the same effect. This testimony not only established the fact of the existence of a dangerous agency which threatened the safety of the employees, but it showed a knowledge and appreciation of the danger on the part of the company.
“The plaintiff was the superintendent of the door factory, and often used the railroad track in going from the factory to the company’s office. In doing this he passed directly in front of the blow-off pipe. He testified, however, that he had never noticed the blow-off pipe, and did not know that it was there, and had never seen the steam blown off.”
“On the fifth of October, 1905, about 8:30 o’clock in the morning, the plaintiff started from the door factory to the machine shop and to the office, and went by way of the railroad track because it was a shorter route. As he passed the corner of shed No. 4, which was on the western shore of the mill pond, he noticed defendant’s log train moving east on the scales track on the south side of the saw mill plant. This track extended in a northeasterly direction to a junction with the other track referred to, the connecting switch being near the company’s office. The train was moving in the same general direction that the plaintiff was going, and, as it was the invariable custom to weigh the cars as they passed over the scales, the plaintiff reasonably supposed that it would be ten or fifteen minutes before the train could pass the switch and come back on the track on which he was walking, even if it was the intention of the train crew to bring it back on that track. As the plaintiff continued on his way, he lost sight of the train, which passed on the other side of the saw mill plant from him. When the plaintiff reached a point about opposite the blow-pipe, the valve was suddenly opened without any warning, and the plaintiff was immediately enveloped in steam and vapor. Henry Washington testified that he opened the valve without first looking to see if the way was safe, and that he violated the company’s orders in doing so. It enveloped him so completely that he could not see in any direction. He was feeling around trying to get off the track, exercising the best care he could in his confusion, and making special effort to avoid stumbling and falling, because the track at this place was on an embankment six or seven feet high with a ditch on each side. While groping his way to the north side of the track, which was away from the steam and afforded the best avenue of escape, a puff of wind lifted the steam and he saw the end of a log car about two feet from him. He reached out his hand, and it struck the end of the. log. He tried to catch hold of it, but missed, and grabbed the end that hung. down. He threw -his foot against the break beam, and when he lost his hold he fell with his back on the north rail. As his foot was pressed against the brake beam, the train pushed him a few feet along the rail, when he tried to throw himself off the rail on the north side of the track. In doing this his left foot was run over, and he was injured in such a way as to make him a cripple for life. If it had not been for the steam, plaintiff would have seen the train, for he was keeping a lookout for it, and the train operatives would have seen the plaintiff, for they were looking down the track.”
These facts presented at least two questions that should have been submitted to the jury. First. Was appellee guilty of negligence in failing to provide for the safety of appellant and thereby liable for his injury? Second. Were appellant and Henry Washington fellow servants — were 'they “so related in their labor performed in the service of the master as ordinarily to be exposed to injuries caused by each other’s negligence? (Snellen v. Kansas City Southern Railway Company, 82 Ark. 334, 337.) They should have been submitted with appropriate instructions, The court erred in instructing the jury to return a verdict in favo/ of the defendant.
Reverse and remand for a new trial. | [
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Wood, J.,
(after stating the facts). First. It appears that appellee Lake “was offered $300 a year for it if he would deliver the place that 'Combs (appellant) holds with the lands, so that the ferry could be put in and operated from that place.” Appellee could get $300 a year for it. Hence he testified that it was worth $300 per year. After the statement of this fact the jury could draw the conclusion as well as appellee that the usable value of the land for ferry purposes was $300 per year. But it was not error, at least not prejudicial error, for him to state that it was worth $300 a year to operate a ferry from, after he had given in evidence the fact which, if believed, showed that it would have yielded its owners that sum. One of the conditions on which the opinions of nonexpert witnesses is received is “that the facts upon which the witness is called upon to express his opinion are such as men in general are capable of comprehending and understanding.” Commonwealth v. Sturtivant, 117 Mass. 122, 137, approved by this court in Little Rock Traction & Electric Co. v. Nelson, 66 Ark. 494, 498.
The testimony objected to did not come within the familiar rule excluding evidence that is the mere opinion of the witness as to the amount of damages sustained to person or property. Little Rock Ry. Co. v. Hogins, 47 Ark. 497; Sedgwick on Damages, pp. 158, 159, and cases cited in appellant’s brief.
This is not a case where one is seeking to recover damages for personal injuries or for injuries to property. But it is a case merely of showing the usable value of land, and the witness may give his opinion of what that value is, basing it upon statement of facts, as was done in the case at bar, to justify the opinion. It is rather the case of where there is no room to measure the damages except in one way, i. e., whát the land was worth for the uses to which it was adapted. The opinions of witnesses having knowledge of the particular subject are generally held admissible on questions of value.” Sutherland on Damages, § 843, p. 2511. See also § 654. See also St. Louis, I. M. & S. Ry. Co. v, Brooksher, 86 Ark. 91.
Second.- The instructions given show that the court comprehended the only issue that the former opinion of this court remanded to it for trial, and correctly submitted that issue to the jury. Under the evidence, it was a jury question, and there was evidence to sustain the verdict in the sum rendered.
Finding no prejudicial error, the judgment must be affirmed. | [
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Fraurnthar, J.
On September 3, 1904, the parties to this litigation entered into a written contract for the sale _ and rent of a tract of land by William Friar, the defendant below, -to F. V. Baldridge -and W. A. Baldridge, the plaintiffs below. The portions of said contract which are material to the determination of the rights of the parties herein are as follows:
"contract oR Sarr and rrnt.
“This contract made this 3d day of September, 1904, ■ between Wm. Friar, party of the first part, and F. V. Baldridge and W. A. Baldridge, parties of the second part, witnesseth that, in consideration of the stipulation hereinafter contained, and the payment to be made as hereinafter specified, the first party agrees to sell unto the second parties the following described real estate situated in Bogan County, Arkansas, to-wit: (Here follows the description of the land.)
“And the said second parties, in consideration of the premises, hereby agree to pay to the order of the said first party the following sums 'at the several times named below:
“Nov. 1, 1904, $50, 10 per cent after due.
“Nov. 1, 1905, $100, 10 per cent after date, (indorsed) paid A. Hall.
“Nov. 1, 1906, $100, 10 per cent after date, (indorsed) paid A. Hall.
“Nov. 1, 1907, $100, 10 per cent after date, (indorsed) paid A. Hall.
“For which several amounts the parties of the second part have executed and delivered to the said party of the first their four (4) promissory notes, dated on the 3d day of September, 1904. * * *
“But in case the said second party shall fail to make the payments aforesaid, or any of them, punctually, and upon the strict terms and >at the times above limited, and likewise to perform and complete all and each of the agreements and stipulations aforesaid, strictly and literally, without any failure or default, time being of the essence of this contract, then this contract shall, from the díate of such failure, be null and void, and all the rights and interests herebv created or then existing in favor of said second parties, their heirs or assigns, or derived under this contract, shall utterly cease and determine, and the premises hereby contracted shall revert to and revest in the said first party, his heirs or assigns (without any declaration of forfeiture or act of re-entry, or without any other act by the said first party to be performed, and without any right in said second parties of reclamation or compensation for moneys paid or improvements made), as absolutely, fully and perfectly as if this contract had never been made.
“And it is hereby further convenanted and agreed by and between the parties hereto that, immediately upon the failure to pay any of the notes above described, all previous payments shall be forfeited to the party of the first part, and the relation of landlord and tenant shall arise between the parties hereto for the year from January 1st immediately preceding the date of default, and the said party of the second part shall pay rent at the rate of ($50) fifty dollars for occupying the premises from the said January 1st to the time of default, such rent to be due and collectable immediately upon such default.”
The defendant claimed that the plaintiffs failed to pay the last two mentioned notes; and on November 27, 1907, he gave written notice to them to quit the land- and déliver its possession to him. The plaintiffs on the following day instituted this suit in the Logan Chancery Court, and in their complaint alleged that they had paid all said notes and asked for a specific performance of the above contract to convey said land to them. On December 2, 1907, William Friar instituted in the Logan Circuit Court a suit of unlawful detainer against the plaintiffs, and therein sought a recovery of the possession of said land. That suit was transferred to the Logan Chancery Court, and in said court was consolidated with the above suit of plaintiffs for specific performance.
Upon a trial of the cause in the chancery court a decree was rendered granting the prayer of the plaintiffs and divesting all title to the land out of defendant and investing same in plaintiffs. From that decree the defendant presents this appeal.
1. It is contended by the defendant that the plaintiffs failed to pay the last two notes' mentioned in the above contract; and that by its terms time was of the essence thereof, and on the failure to make said payments the right of plaintiffs to purchase the land became forfeited.
Parties may enter into a valid contract relative to the sale of land whereby they may provide that time of payment shall be of the essence of the contract, so that the failure to promptly pay will work a forfeiture. Ish v. Morgan, 48 Ark. 413; Quertermous v. Hatfield, 54 Ark. 16; Block v. Smith, 61 Ark. 266. But the final effect of such an agreement will depend on the actual intention of the parties, as evinced by their acts and conduct; and such a breach of the contract as would work a forfeiture may be waived or acquiesced in. The law will strictly enforce the agreement of the parties as they have made it; but, in order to find out the scope and true effect of such agreement, it will not only look into the written contract which is the evidence of their agreement, but it will also look into their acts and conduct in the carrying out of the agreement, in order to fully determine their true intent. It is a well-settled principle that equity abhors a forfeiture, and that it will relieve against a forfeiture when the same has either expressly or by conduct been waived. The following equitable principle formulated by Mr. Pomeroy has been repeatedly approved by this court: “If there has been a breach of the agreement sufficient to cause a forfeiture, and the part}' entitled thereto either expressly or by his conduct waives it or acquiesces in it, he will be precluded from enforcing the forfeiture, and equity will aid the defaulting party by relieving against it, if necessary.” 1 Pomeroy, Eq. Jur. 452; Little Rock Granite Co. v. Shall, 59 Ark. 405; Morris v. Green, 75 Ark. 410; Banks v. Bowman, 83 Ark. 524; Braddock v. England, 87 Ark. 393.
Guided by these principles, we will inquire whether under the evidence there was actually a forfeiture of this contract to sell and convey; and, if so, whether that forfeiture was waived.
The evidence tends to prove that the plaintiffs paid the first note before its maturity, and paid the second note shortly after its maturity. About the time the third note matured the plaintiffs paid to the defendant $75, and desired that it be appropriated on the payment of that note. The plaintiffs were at that time owing the defendant other indebtedness; and the defendant said to them that he would give them time on the payment of the land notes, and that he would appropriate this payment to the other indebtedness. He had said before that time that he would give the defendants ten years in which to pay for the land ; and on this occasion he indicated and agreed that he would extend the time of the payment of the note for the land, and would not insist on its prompt payment. In accordance with that understanding, the above payment was applied by defendant to the other indebtedness. The defendant did not, during the following year of 1907, make any request for rent for that year; nor did he make a suggestion that the contract was forfeited, although nothing was paid on the note maturing November 1, 1906. In the meanwhile, during all these years, the plaintiffs made lasting improvements on the land, of the value of $390. In 'the fall of 1907, the plaintiff W. A. Baldridge was contemplating moving from the land to the town of Paris; and he and the defendant entered into oral negotiations by which the defendant ¿greed to purchase the land back at the price of $400; and, after deducting 1 herefrom what was owing by palintiffs, to pay the balance. It is claimed also -by the defendant that this oral agreement was a rescission of the above written contract. While this oral agreement to resell to defendant or to rescind the written contract is denied by W. A. Baldridge, yet the preponderance of the evidence establishes such an agreement. But the undisputed evidence is that the other plaintiff and tenant in common, F. Vj Baldridge, never made such an agreement, and there is no testimony that he ever authorized W. A. Baldridge to make such an agreement. The undisputed evidence is, further, that the possession of the property was not delivered; that the notes then unpaid were not turned over, but still retained by Friar; that the written contract was still retained; that no payment was made by defendant; in fact that .nothing was done towards carrying out the alleged agreement of resale or of rescission. Neither at that time, nor at any other time, was a forfeiture of the written contract declared by the defendant. On the contrary, on that day, November 2, 1907, the last note was not due, inasmuch as with grace it was not due until November 4, 1907. The defendant testified that it was not convenient to draft the necessary papers evidencing their agreement on that day, and, inasmuch as he was going to be absent from the county for several days, the drafting and execution -of such written agreement were postponed. It appears that the defendant had left the two unpaid' notes in the hands of an attorney ;at Paris for safe keeping. This attorney had transacted generally .a great deal of business for the defendant; and he had drafted the original contract executed by the parties in 1904 and the four notes, and had retained possession of the notes ever since their execution. When the two first notes were paid, the attorney-turned those two notes over to defendant, who delivered them to plaintiffs. On November 7, 1907, the plaintiffs sold the land to Mollie E. Green, and transferred to -her the above written contract, and placed her in possession of the land. On the same day W. A. Baldridge paid to said attorney the entire amount due on the last two notes, and from him received the two notes. The attorney also noted the payment of these notes on the contract. Pie did this on .the assurance of said Baldridge that this was agreeable to the defendant. The defendant, however, refused to recognize this act of collection and surrender of said notes, and refused to accept said money. The attorney at the hearing still had the money and offered to pay same into court for the party entitled thereto.
From this testimony it would appear -that it is doubtful whether there was such a failure to malee payment as to work a forfeiture of the contract. The note maturing November 1, 1906, was extended, and presumably for a year. About the time of the maturity of the two last notes, negotiations were being made relative to the land by the defendant and one of the plaintiffs ; and within three days after the maturity of the notes they wlere paid in full by the plaintiffs. In addition to this, the conduct of the parties indicate that it -was not the intention of the parties to insist on payment on the exact day of maturity of the two last notes; and in any event that the defendant waived any such forfeiture or acquiesced in it, if such forfeiture was actually made. So that under the facts and circumstances of this case the defendant cannot insist now in a court of conscience on a forfeiture of this contract.
2. It is urged by counsel for defendant that by the above oral agreement the plaintiffs relinquished to him the written con-, tract and their interests -therein, and thus rescinded the written contract of sale. It is urged that such an agreement need not be in writing. The above written contract for the sale of the land, not being forfeited but in full force, was in effect .a bond for title. By virtue of that contract, therefore, the plaintiffs obtained an equitable interest in the land. Under the statute of frauds, as enacted in this State, it is provided that: “To charge any person upon a contract for the sale of lands, tenements or hereditaments or any interest in or concerning them,” such agreement or contract must be in writing signed by the party to be charged therewith. Kirby’s Digest, § 3654, subdiv. 4. -In Browne on Statute of Frauds, § 229, it is said: “The 4th section of the statute of frauds, extends to and embraces equitable as well as legal interests.” In the case of Smith v. Burnham, 3 Sumner's Reports, 435, Story, J., says: “A contract for the conveyance of lands is a contract respecting an interest in lands. It creates an equitable estate in the vendee in the very lands, and makes the vendor a trustee for him. A contract for the sale of an equitable estate in lands * * * is clearly a sale of an interest in the land within the statute of frauds.” In Hughes v. Moore, 7 Cranch, 176, Marshall, C. J., says: “The court can perceive no distinction between the sale of land to which a man has only an equitable .title and a sale of land to which he has a legal title. They are equally within the statute.”
The alleged agreement made on November 2, 1907, was in effect a resale of the land, or of the interest of the plaintiffs therein, hack to the defendant. It was therefore a sale of an equitable interest in the land, and falls within the statute of frauds. The rescission of a contract of the sale of land is in effect the sale of an equitable interest in the land; it is in effect a resale of the land. And while it appears that it is somewhat unsettled as to whether a contract for the sale of land may be rescinded by a parol agreement, yet, as is said in Smith on the Daw of Fraud, § 363: “The weight of authority would seem to be that it cannot.” And it appears to be uniformly held that an oral agreement to rescind a contract for the sale of land entered into, after some payments have been made and others are due, will be held to be within the statute of frauds and invalid, unless followed by an actual abandonment of the sale by both parties and a restoration of the property to the vendor. Pratt v. Morrow, 45 Mo. 404; Dougherty v. Catlett, 129 Ill. 431; Miller v. Pierce, 104 N. C. 389; Maxon v. Gates, 112 Wis. 196.
Furthermore, it is not contended that the plaintiff F. V. Baldridge entered into any contract for a resale of the land or a rescission of the contract. “One tenant in common cannot bind his cotenant by any unauthorized agreement or act in respect to the common property.” 17 Am. & Eng. Ency. Law (2d Ed.), 672; 23 Cyc. 494.
It follows, therefore, that there are no errors in the findings of the chancellor. The decree is affirmed. | [
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MoCüeeoch, C. J.
The circuit court sustained a demurrer to an indictment in the following form (omitting caption and formal parts) : “The said defendant, on the 3rd day of October, 1904, in Union County, Arkansas, then and there being the cashier of the Bank of El Dorado, said Bank of El Dorado being a corporation, with its home office located in the town of El Dorado, Union County, Arkansas, did unlawfully, wilfully, knowingly and feloniously accept and receive on deposit in said Bank of El Dorado, of and from G. D. Yocum, a certain bill of exchange for $974.61, commonly called and known as a check, which was signed and drawn by J. R. Burns and payable to Miss Bobbie Yocum, said bill of exchange so commonly called and known as a check aforesaid, then and there being accepted and received on deposit in said Bank of El Dorado by the said defendant in lieu of money, the said Bank of El Dorado then and there being insolvent, and the said E. PI. Smith then and there being the cashier of said bank, and well knowing at the time he so accepted and received on deposit said bill of exchange, so commonly called and known as a check as aforesaid, that' said Bank of El Dorado was then and there insolvent.”
The points of attack upon this indictment are set forth in the demurrer as follows:
“rst. The date of said check is not stated, nor does the indictment allege that said date was unknown to the grand jury.
“2nd. The name of the bank, corporation, firm, company or person on whom said check was drawn by J. R. Burns is not stated, nor does the indictment allege that same was unknown to the grand jury.
“3rd. The indictment fails to state to whose account said check was deposited by the said G. D. Yocum, or for whose account it was accepted and received by the defendant.
“4th. The indictment fails to state whether the check referred to therein was accepted by the defendant as cashier of the Bank of El Dorado as a general deposit, thereby becoming a part of the funds of said bank, or on special deposit, as bailee of the owner of same.
“5th. The indictment fails to state whether the check referred to therein was indorsed by Miss Bobbie Yocum to G. D. Yocum, or whether the said G. D. Yocum was the owner of said check, and as such deposited same, or whether in the deposit of said check he acted as the agent of the payee or other person.
“6th. The indictment fails to allege that the check referred to therein circulated as money, as required by the statute.”
The statute under which the indictment is preferred reads as follows: “No bank shall accept or receive on deposit, with or without interest, any money, bank bills or notes, or United States treasury notes, gold or silver certificates, or currency, or other notes, bills or drafts, circulating as money, or currency, when such bank is insolvent; and any officer, director, cashier, manager, member, party or managing party of any bank who shall knowingly violate the provisions of this section, or be accessory to, or permit or connive at the receiving or accepting on deposit of any such deposit, shall be guilty of a felony, and upon conviction thereof shall be imprisoned in the State Penitentiary not less than three years and not more than five years.” Act Eeb. 12, 1901, Kirby’s Digest, § 1814.
We are of the opinion that the first and second grounds set forth in demurrer are not well taken. The check was fully identified by the description given in the indictment, without stating the name of drawer or the date of the check. The name of the drawee is stated, the name of the payee and the amount of the check. This, we think, is sufficient to fully identify the check so that the defendant could plead former acquittal or conviction to a second indictment.
The third ground is likewise without substantial foundation. The indictment charges that the deposit was received from G., D. Yocum. This could only be understood to mean that the deposit was made by G. D. Yocum for his own account, and was so accepted by the defendant. State v. Cadwell, 79 Iowa 432.
There is no merit in the fourth ground of demurrer. The statute makes no distinction between general and special deposits, so far as this offense is concerned, and it is unnecessary to allege in the indictment the particular character of deposit — whether general or special. It is sufficient to allege that the funds, etc., were deposited.
The fifth and sixth grounds of the demurrer relate to the same point, and should be considered together. The allegations of the indictment are to the effect that the check deposited by G. D. Yocum was one drawn by J. R. Burns in favor of Miss Bobbie Yocum, but it is neither alleged in terms that the check was indorsed by the payee nor that it was an obligation which circulated as money.
It is not altogether clear what the Legislature meant by the words “other notes, bills or drafts, circulating as money, or currency.” Literally construed, there are no “notes, bills or drafts” which circulate as money or currency except United States treasury notes and national bank notes, and it is obvious that the Legislature did not refer to these in using this language, for they-are especially mentioned in the statute. If any meaning at all be given to this language, it must be held to refer to notes, bills or drafts (other than United States treasury notes and national bank notes) which pass from hand to hand; that is to say, such as are payable to bearer or are properly indorsed by the payee, so that the legal title may pass by delivery.
Now, applying this test, the allegations of the indictment do not sufficiently describe the check so as to bring it within the terms of the statute. It is not alleged, either in general terms that it was a “note or draft circulating as money or currency,” or that the check which was drawn payable to Miss Bobbie Yo- cum was ever indorsed by her so that the legal title might pass by delivery.
It is contended on behalf of the State that the allegation of the indictment to the effect that the check was accepted by the defendant in lieu of money was equivalent to an allegation that it was a draft circulating as money. We do not think so. The meaning of the two statements is altogether different. One is descriptive of the written instrument, and,the other refers entirely to the manner of acceptance of the paper. It may as well be said that an allegation of acceptance on deposit of a horse or bale of cotton in lieu of money would bring it within the statute.
The statute must be strictly construed, and in order to make out a charge under it the language must state facts within its express terms.
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Wood, J.
(after stating the facts). Appellant urges the following grounds for reversal:
1st. Because the substituted trustee had no power to sell, the contingency never having arisen giving the beneficiary the night to appoint a substituted trustee.
2d. Because there was no real appraisement of the lands as contemplated by the statute, the appraisement being fixed by the agent of the beneficiary, who was also the purchaser, and not by the appraisers.
3d. Because the purchaser by fraud and collusion prevented other bidders from participating'at the sale.
We shall dispose of these in the order named.
1. Thos. J. Watson was the trustee named in the deed of trust. The deed of trust contained the following provision: “But, should said Thomas J. Watson die or neglect to carry out this trust, then said Elbert L. Watson, or the holder of said notes, may by indorsement hereon or on the margin of the record of this deed name and appoint any other suitable person to act as such trustee, and such person, when so appointed, shall have all the authority herein given to said Thomas J. Watson.” The deed of trust is indorsed on the margin as follows, “I, Elbert L. Watson, hereby appoint and designate J. A. Watkins as trustee to execute the within trust, and confer upon him all the power and authority for such purpose as the within deed of trust confers upon Thomas J. Watson, the trustee herein named; who has neglected to execute this trust. Newport, Arkansas, September 27, 1893. E. E. Watson.”
This statement of the beneficiary in the deed of trust is certainly evidence to be considered by the chancellor in determining whether the contingency arose which gave the benficiary the right to substitute a trustee who could better determine than the beneficiary whether the trustee had neglected to carry out the trust. This statement of the beneficiary shows that he did determine that the trustee had neglected to carry out the trust, and that should end the matter, especially in the absence of any evidence to the contrary. Such evidence as the record discloses tends to confirm the statement of the beneficiary, that the trustee had neglected to execute the trust. For it appears that prior to September 27, 1893, and “soon after the opening up of Oklahoma, he (the trustee) went over there,” that “he was out of the State, and not in a position to act.” The evidence is almost conclusive that the condition had arisen that authorized the beneficiary to appoint J. A. Watkins trustee. In the case of Stallings v. Thomas, 55 Ark. 326, the contingency that authorized the substitution had not arisen. The mortgage provided in that case that the beneficiary might substitute another trustee in case the trustee named in the mortgage “should die, be absent from the county or fail or refuse to execute if.” The opinion states that the trustee “was alive and in the county at the time of the sale, he was not requested to execute the power, and did not refuse or fail to do it.” The case is authority for the position that a trustee can not be substituted for the trustee named in the mortgage unless the conditions which authorize the substitution are found to exist. Here it is clearly shown that they did exist. In Stallings v. Thomas, supra, it appears affirmatively that the trustee named in the mortgage was not requested to execute the power, and that he was in the county where he could have executed it if the request had been made. But here the facts are different. The trustee named in the deed “was out of the State, and not in a position to act.” That being true, a request to act could not have been complied with, and its necessity therefore was eliminated. Moreover, there is no affirmative showing here that the beneficiary, Watson, proceeded to substitute a trustee without requesting the trustee named in the deed to act." The language of the indorsement, “who has neglected to execute this trust,” implies that the beneficiary had done whatever was necessary for him to do under the circumstances. Otherwise he could not have said that the trustee “had neglected to execute the trust.”
2. To be sure, the recitals in the deed of J. A. Watkins as trustee could not be taken as prima facie evidence of the validity of his own appointment, that being the subject-matter of the inquiry. But, the validity of such appointment' being estab lished by evidence aliunde, as we have shown, then the recitals of his deed, showing substantial conformity to the- requirements of the deed of trust, are prima facie true, and the burden of showing their falsity is upon the party assailing the deed. McConnell v. Day, 61 Ark. 464; Ingle v. Jones, 43 Ia. 286; Beal v. Blair, 33 Ia. 318; Tartt v. Clayton, 109 Ill. 579. See also 28 Am. & Eng. Enc. L. 825, notes 10 and xi; Naugher v. Sparks, 110 Ala. 572; Tew v. Henderson, 116 Ala. 545. See note to Tyler v. Herring, 19 Am. St. 263. Where the trustee’s deed is the subject-matter of attack, the same rule should apply in equity as at law. The doctrine is applicable generally only to-the grantor of the power in the mortgage or deed of trust and his privies, and there can be no good reason why it should apply at law and not in equity.
The trustee’s deed contains the following recital: “And whereas the said J. A. Watkins, at the request of said E. E. Watson, did, prior to said day of sale, to-wit, on the 17th day of October, 1893, cause said lands to be duly appraised by W. T. Blackford, S. W. Howard and H. H. Munsel, three householders of said Eawrence County, Arkansas, who were duly appointed by D. S. Jasper, a justice of the peace in and for said county, as the law directs, at which appraisement (Then follows a description, of the lands by legal subdivisions, as called for in the deed of trust, together with a separate appraised value as to each subdivision) which appraisement totaled $3/600.” According to the rule above announced, the foregoing recitals must be taken as prima facie true. The appellant has undertaken to show that the lands were not “duly appraised” by John Arnold, who testified, on this point, as follows: “Appraisers never went to look at the farms. John Glass stated to the appraisers that they wanted it appraised, so it would bring the debt, so it would sell, and to appraise it down so they could have it.” And by William Crane, who testified: “I heard John Glass tell the - appraisers they wanted it appraised so it would bring the debt and expenses, so the boys could buy it in.” It was also shown by appellant that. Glass was E. E. Watson’s agent. It was in evidence that John Arnold lived upon the lands in question at the time the alleged appraisement was made, and that the appraisers met at his house. So when the witness says they never went to-look at the farms, he must have meant that they did not ride or walk over the farm to look at them. The testimony does not show that the appraisers could not and did not view the lands from John Arnold’s house, where they met. In Merryman v. Blount, 79 Ark. 4, we said: The object of the appraisement was to ascertain the true value of the land and to insure, as far as possible, the sale of the land at a fair price, to prevent the possibility of the land being sacrificed at a grossly inadequate price. The report of the appraisers is, of course, made after they are sworn, and the presumption is that they will do their duty and ascertain the value of the land as'the law requires, and that this shall be done, not by report or hearsay, but by actually viewing the property. While the statute contemplates an actual view of the property, it does not require an actual entry on the land in order to view it. A reasonable construction of the statute is that the appraisers must have viewed the property before they placed a value upon it. If this view can be had so as to ascertain the true value of the property without entry on the land as well as by actually going upon it, then actual entry is not necessary.”
There is nothing in the evidence to show that Glass, the agent for Watson, did not have the appraisers duly appointed as shown by the recitals of the trustee’s deed. Having been duly appointed, the presumption is they did their duty and ascertained the value of the land as the law required. What John Glass may have said to the appraisers was not material if the appraisers were not influenced by it to make a fraudulent appraisement. The evidence does not show that the lands were appraised at a grossly inadequate value. The preponderance of the evidence does not warrant the conclusion that the lands were appraised at less than their true value. It is certain that the evidence as to the value of the land at the time of the appraisement does not justify a finding of fraud on the part of the appraisers. The appraisement, for aught shown to the contrary, comes well up to the requirements of the law as declared in Merryman v. Blount, supra.
3. To support his contention that E. E. Watson practiced fraud in suppressing bidding at the trustee’s sale, appellant relies upon the following testimony: John Arnold testified: “The morning we went to Walnut Ridge to buy it in, we saw Mr. Watson, and he said: ‘Let me bid it in, and don’t you bid on it, and at the end of twelve months you come in, and I will make you a deed to it. The estate can’t claim it against you.’ During the time Abe Phelps wanted to bid on it, and came to me and asked me if I was going to bid on it, and I told him the arrangement I had made, and he said if we boys were going to get it he would not bid, but if Watson was buying it he wanted it. Scarborough wanted it sold in forty-acre blocks, and Watson said it was fixed so the boys would get it.”
Henry Arnold testified: “I heard a conversation between John and E. L. Watson. John told Watson that he wanted to bid the land in, and Watson said: ‘Let me bid it in, and I will malee you a deed to it, .and it will hold the other heirs off, or ■they will come in against it.’ We were down at Newport afterward, and Watson said he had not got a deed. When he got the deed, he would make us a deed. There was only one bid, and Watson made that.”
A. P. Brown testified: That he knew Watson and the Arnold boys, and that he heard a conversation between them on the day of the sale of the lands at Walnut Ridge, and from the conversation he understood they were talking about arranging the land matter, so that the Arnold heirs could get it at some future date. “As I understood it, they were to have it back by paying what was due at the end of- the year.”
W. H. Crane testified that he heard a conversation between E. L. Watson and John Glass, his agent, in which Glass told him that he (Watson) would have to buy the land in again, and Watson said: “I won’t if you keep your damn mouth shut.”
J. A. Watkins testified that after the sale Watson said to the Arnold boys: “Boys, if you want to take it up, I would be glad if you would do so.”
It was shown that Judge Scarborough, mentioned in the testimony of John Arnold, was the attorney for the administrator of the Arnold estate, and was present at the* sale. This suit was begun January 31, 1906, a little more than thirteen years after the sale. Glass, whose conduct in connection with the appraisement is assailed, died in 1898, and E. L. Watson, whose conduct in connection with the sale is attacked, died in 1901. Appellant is not responsible for the delinquencies of his guardian. But it is nevertheless true that, if the facts with reference to the conduct of Glass and Watson were as John Arnold testified, he, as guardian of appellant, should have brought suit to set aside the sale long before Glass and Waston died, and was most remiss in his duty for not having done so. Again, according to the testimony of John and Henry Arnold, arrangements had been made for money with which to purchase the land at the sale, but they did not make the purchase because of the understanding they had with Watson that he was to bid it in and let them have it afterwards. If they could have raised the money to buy at the sale, they could have also redeemed before the time expired. If the land was worth between $6,000 and $10,000, as they testify, it does not seem reasonable that they would have let the opportunity pass, but would have insisted on Watson carrying out his promise to make them a deed before their legal rights to redeem had passed forever. John and Henry cross each other in their testimony as to the arrangements that had been made to secure the money before the sale with which to purchase the land. John testified that he had made arrangements with Lawrence County Bank to borrow the money. Henry testified that John told him that the arrangement to get the money was with one James Turner. Learned counsel for appellant say in their brief “that appellant was at the time of the sale a minor of the age of nine years, and that the scheme to have the lands sacrificed was a fraud upon his rights, whether John and Henry Arnold got the benefit of it or E. L. Watson.” But doubtless the question with the chancellor was, as it is with us, whether a sale, which, from the recitals of the deed and testimony of the trustee, appears to have been conducted according to law, should be set aside upon the testimony alone of witnesses who confess that they were in the “scheme of fraud, if it be such, upon the rights” of their brother. The testimony of Brown, who was unrelated to the parties and disinterested, sho\ys that, as he understood the conversation between John and Henry Arnold and E. L. Watson on the day of the sale, it was that the “Arnold heirs could get it at some future time; they were to have it back by paying what was due at the end of the year.” This corroborates what O. D. Watson, the son of E. L. Watson, who was with his father on the day of the sale, says that his father told the Arnolds, towit: “The law gives you twelve months to redeem this land, if you want to take advantage of it. All I want is my money. I don’t want the land.” It corroborates also the testimony of the trustee, who testifies that Watson said to the Arnold boys: “Boys, if you want to take it up, I would be glad if you would do so,” which could mean nothing more nor less than that he would be glad if the boys would take up the land, i. e., redeem it.' The testimony of Crane is shown not to have been consistent and free from suspicion all the way through, and his testimony of the purported conversation between E. L. Watson and John Glass, Sr., after the sale is not sufficiently definite to show what the parties to the conversation meant by it. It is in the nature of hearsay evidence.
Giving all the testimony in the record careful consideration, and scrutinizing the sale with that scrupulous care required to protect all the rights of the minors, who are ever the special wards of chancery, we .are unable to find any warrant in this record for setting aside the decree and finding of the chancellor. The law imputes good and not evil notions to the sayings and doings of men that appear upon their face to be regular and free from any suspicion of fraud. We are unwilling, from the testimony in this record, after this great lapse of time, to put the “trail of the serpent” over the conduct of those who were not assailed- until death had closed their mouths. The law does not justify us in doing so. Naugher v. Sparks, supra.
Decree affirmed. | [
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Wood, J.,
(after stating the facts.) 1. There was evidence to sustain the verdict.
2. It will be observed that the note sued on contained the stipulation “that the title, ownership and possession does not pass from the Nashville Lumber Company’s Store until this note and interest is paid in full, and the Nashville Lumber Company Store has the power to declare this' note due and take possession of the above property whenever they deem themselves insecure,” etc.
The appellant does not sue for the property, but for the purchase money. The only defense was that appellant had elected before the institution of the suit to retake the property. The ques tion of satisfaction of the note was not raised by the answer. The legal effect of the facts set up in the answer, if such facts were proved, was to show an election on the part of the appellant. Appellees introduced evidence tending to prove the allegations of its answer, and the court submitted the question to the jury under proper instructions. Appellant’s prayer number one incorrectly states the defense set up by appellees. For it says: “Robinson claims that all of said property was returned to the plaintiff, and was accepted by it in satisfaction of said notes.” The words “in satisfaction of said notes” were not used in the answer, and none of its allegations would warrant the conclusion that appellee Robinson was setting up the defense of payment or satisfaction based upon a contractual relation between appellant and appellees. But the allegations of the answer and the evidence adduced by the appellees shows that their defense was a cancellation of the debt by the election on the part of appellant "to retake the property. The words “in satisfaction of the notes” introduced an issue not in the case, and were well calculated to confuse and mislead the jury. For, if the appellant elected to retake the property, and thus in effect to cancel the debt before this suit was brought, then it could not thereafter sue to recover the purchase money also. When this debt became due and was unpaid, the vendor, having reserved the title until the purchase price was paid, had its election to take either of two courses. It could elect to retake the property, and thus in effect cancel the debt, or it could bring its action to recover the debt, and thus affirm the sale and waive reservation of title. Butler v. Dodson, 78 Ark. 569. But appellant, having taken the former course, as appellees allege, could not thereafter pursue the latter, and hence is barred of the right to recover in the present suit.
The judgment is affirmed. | [
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Steele Hays, Justice.
On November 14,1991, Tyson Efird, eighteen years old, was kidnapped at gunpoint from The Food Center in Malvern where he worked. The state alleged Efird was held captive by Carl Meny, appellant, and Kevin Scott, a co-defendant, until November 20th, when Efird was released by his captors. Efird testified that during his abduction he was repeatedly raped by Meny, and that on two occasions Meny had tried to suffocate him.
Meny was charged with three counts of rape, one count of kidnapping and one count of attempted capital felony murder. Trial was held on June 29,1992, and the jury found Meny guilty on all five counts. He was sentenced to three consecutive life terms for each count of rape, thirty years for the attempted capital felony murder and twenty years for kidnapping. Meny brings this appeal, arguing five points for reversal, none of which have merit.
I
Trial Court Erred In Refusing To Grant Appellant’s Motion To Change Venue To A County In Another Judicial District.
At a pretrial hearing Meny moved for a change of venue based on pretrial publicity. The trial court granted the motion, changing the trial from Hot Spring County to Saline County. Meny was not satisfied and requested a different judicial district. The motion was denied. On appeal Meny argues it was error for the trial court to deny a change of venue outside the judicial district.
While we have indicated that a trial may be moved to another judicial district, see Anderson v. State, 278 Ark. 171, 644 S.W.2d 278 (1983), Meny made no showing in support of such a change, nor even for a change to another county. A criminal case may be removed to the circuit court of another county upon a showing that the minds of the inhabitants of the county where the case is pending are so prejudiced that a fair and impartial trial cannot be had. Ark. Code Ann. § 16-88-201 (1987). The burden is on the defendant to show an inability to obtain a fair trial. Morris v. State, 302 Ark. 532, 792 S.W.2d 288 (1990). We will not disturb the finding of the trial court in the absence of an abuse of discretion. Id.; Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988).
Here the record as abstracted lacks any evidence offered by Meny, other than conclusory argument by defense counsel. It is fundamental that the record on appeal is confined to that which is abstracted. Lee v. State, 297 Ark. 421, 762 S.W.2d 790 (1989). The burden is on the appellant to show prejudice for a change of venue, and absent any evidence to that effect, we must affirm the trial court’s denial of the motion.
II
Trial Court Erred In Refusing To Sequester The Jury And Refusing To Grant A Mistrial After One Of The Prospective Juror’s Made An Unsolicited Reference To Press Coverage Of The Case During Voir Dire.
During voir dire, the following exchange took place:
Prospective Juror. Mr. Harmon, may I ask you a question?
Harmon: Would you state your name?
Juror. My name is Joyce Staggs.
Harmon: Yes, Ma’am.
Juror: We’ve all heard and read the paper, newspaper of the incident.
Defense counsel moved for a mistrial on the grounds that Ms. Staggs’s comment had tainted the jury panel. The trial court denied the motion and the state proceeded to question Ms. Staggs and the other prospective jurors to see if they had read anything about this case and if they had formed any opinions as to guilt or innocence. No one said they had. The state asked whether they could set aside what they had heard or seen and base their decision on the testimony at trial and all responded in the affirmative. The trial court also addressed the panel, explaining the difficulty caused by publicity and encouraging the panel members to indicate if they could not set any preconceptions aside. All panelists said they could set aside what they had heard. Meny argues it was error not to grant the mistrial.
When prospective jurors state that they can lay aside what they have read or heard and try the case upon the evidence, and give the defendant a fair trial, that generally suffices. We wrote in Logan v. State, 299 Ark. 266, 773 S.W.2d 413 (1989):
What the appellant was entitled to and what he got in our judgment was a jury composed of persons who could and did decide the case on the testimony presented in court and not on the basis of news media.
That was shown to be the case here. A mistrial is a drastic remedy and should only be granted under a showing of manifest prejudice. Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989). No prejudice was shown in this case.
III
Trial Court Erred In Refusing To Grant A Mistrial After Appellant Was Seen By Jury Panel In Handcuffs.
Following a lunch break defense counsel asked for a hearing in chambers. He told the court Meny was in the hall with handcuffs on and that all of the jurors coming into the courtroom had seen him. The trial judge expressed his regrets and gave instructions to court officers to avoid any recurrence of such an incident. Counsel made no further offer of proof of what the jurors saw and did not request a hearing for such purpose.
We stated in Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985) that where there has been only a brief, inadvertent encounter between potential jurors and a defendant in restraints, prejudice will not be presumed. In the case before us Meny offered no proof that the encounter was anything but inadvertent and momentary and no prejudice occurred.
IV
Trial Court Erred In Refusing To Grant Appellant’s Bill Of Particulars And In Refusing To Dismiss The Charge Of Criminal Attempt At Capital Murder.
The first information charged Meny with rape and kidnap ping, but was amended to include attempted capital felony murder, with kidnapping as the underlying felony. This amended information had a supporting affidavit from a police officer who had interviewed the victim. The victim had told the affiant all the details of the kidnapping, rapes and attempted murder and identified Carl Meny as his abductor, which facts were set out in the affidavit. A second amended information was then filed listing all the counts of rape, kidnapping, attempted capital felony murder, as well as new counts of terroristic threatening. This information also included the supporting affidavit from the police officer. The attempted capital felony murder count did not specify the underlying felony.
Meny moved for a bill of particulars to the original information and the first amended information, but the motion was never presented or ruled on. As for the second amended information, no motion for a bill of particulars appears in the record. A pretrial hearing was held where the second amended information was discussed. There was no objection by the defense to the attempted capital felony murder charge at that hearing, although other parts of that information were discussed. The case went to trial, and after the state rested, Meny moved for a directed verdict on the attempted capital felony murder charge, arguing there had been no evidence of any underlying charge. The state responded that rape and kidnapping were the underlying felonies and moved that the information be amended to conform to the proof. Meny protested that it was too late for the state to amend and asked that the attempted murder charge be dismissed. Meny argues he went to trial not knowing the nature of the underlying felony for the murder charge, and though he had requested a bill of particulars, it was denied by the trial court, leaving him in a “Catch-22” situation.
In the first place, there is no record of Meny having moved for a bill of particulars to the information in question, nor was there any objection to the attempted capital felony murder charge at the pretrial hearing where that information was discussed. There is no indication from the record that Meny went to trial without knowing the charges against him. Rather, it appears Meny waited to assess the strength of the state’s case before objecting to the information. The proper time to object to the sufficiency of an indictment or information is prior to trial. Ark. Code Ann. § 16-85-705 (1987); Prince v. State, 304 Ark. 692, 805 S.W.2d 46 (1991).
Further, while the second information itself did not specify the underlying felony, it was clear from the supporting affidavit that the underlying felonies were kidnapping and rape. As a substitute for a bill of particulars the state may furnish an accused with information in its file and any other information within the control of the state reasonably necessary to defend against the charges. Green v. State, 310 Ark. 16, 832 S.W.2d 494 (1992). Where the indictment or information may be deficient, that deficiency can be corrected by supplying the defendant with a bill of particulars, or other facts detailing the elements of the charge. Harris v. State, 299 Ark. 433, 774 S.W.2d 121 (1989); David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988); Murry v. State, 150 Ark. 461, 234 S.W. 485 (1921). As in Green and Murry, we find no prejudice since Meny was sufficiently informed of the charges through the supporting affidavits.
V
Trial Court Erred In Allowing The State To Introduce Character Evidence Against Appellant.
Meny makes three arguments pertaining to testimony given by Tom Andry, a witness for the state. Andry testified that he and Meny lived together as lovers, that when Andry broke off the relationship, Meny shot himself in the arm and told authorities Andry was responsible for the shooting.
Meny first argues the trial judge reversed a pretrial ruling that if Meny elected to testify, the prosecutor would not be allowed to offer evidence that Meny was homosexual. But the trial judge made it clear that he was reserving his ruling until he heard the trial testimony.
Second, Meny contends his prior homosexual acts were not relevant. We disagree. On direct examination Meny testified he was not homosexual but bisexual and had had no sexual relations with a man for twenty years. He further testified that it was the victim who was the sexual aggressor and that he had initially avoided the victim’s advances but finally gave in. The trial court ruled that Meny’s sexual preference in this case was relevant to intent. We cannot say the trial court’s discretion was abused.
Third, Meny objected to Andry’s testimony that Meny had shot himself. However, the defense opened the door to this testimony as Meny had earlier testified that someone had shot into his house and he had been struck in the arm by one of the bullets. He testified that he suspected Tyson Efird, thus explaining his contact with Efird. The state was entitled to meet that proof with Andry’s testimony.
The judgment is affirmed. | [
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Per Curiam.
Lawrence Charles Garrett, by his attorney, has filed a motion for rule on the clerk.
The motion admits that the record was not timely filed and that it was no fault of the appellant.
However, the motion does not state good cause for granting the motion as discussed in our per curiam issued February 5, 1979, 265 Ark. 964. If the attorney for Lawrence Charles Garrett will concede that it was his fault that the record was not filed, or if other good cause is shown, then the motion will be granted. The present motion for rule on the clerk is denied. | [
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Robert L. Brown, Justice.
Robert Lee Walker was convicted of aggravated robbery and misdemeanor theft. He appeals this judgment and his sentence as a habitual offender to 35 years imprisonment for aggravated robbery and one year in jail and a fine of $1,000 for misdemeanor theft. His points on appeal are that his right to a trial by jury was unduly encumbered by the Habitual Offender Act following a severance of charges for trial purposes; that he was denied equal protection of the laws, since a presentence report depicting mitigating circumstances was not made available to the jury; and blacks were not sufficiently represented on the jury panel. All three points are meritless, and' we affirm.
On April 6, 1992, Stephanie Thomas, an employee at Schickel’s Cleaners was working at the store when the appellant came in and asked for clothing for his wife. Immediately following the request, she testified that Walker threatened to “blow her head off” if she did not give him the money in the cash register. She did not see a gun but the appellant had his hand in his jacket pocket, according to her testimony, as if he had a gun. She gave the appellant a disputed amount of money from the cash register. He next pulled her over to the bathroom, told her to go inside and lock the door, and said if she came out he would shoot her. She later identified the appellant in a lineup at the Little Rock Police Department.
Walker was charged in one felony information with one count of aggravated robbery and one count of misdemeanor theft associated with the Schickels robbery and one count of aggravated robbery and one count of misdemeanor theft associated with a robbery of E-Z Mart three days later on April 9,1992. The appellant moved to sever the charges on the basis that they were not part of a single plan or scheme. The motion was granted. Walker was first tried for the April 9,1992 robbery of E-Z Mart and was convicted and sentenced to five years. The next day, November 18,1992, he was tried for the Schickels robbery which is the case before us. Prior to the second trial, the State moved to amend the felony information to add a habitual offender count. The trial court granted the motion.
At trial the appellant testified that he robbed Schickel’s Cleaners on the date in question but claimed that he did not have a gun in his pocket and that he did not threaten to harm Ms. Thomas. The jury, nevertheless, found him guilty of aggravated robbery and misdemeanor theft.
During the penalty phase of the trial, the jury was instructed that the State had alleged that the appellant was a habitual offender. The State then offered docket sheets reflecting that Walker had been convicted of aggravated robbery on August 25, 1992, and sentenced to 11 years, and aggravated robbery the day before on November 17,1992, in connection with the E-Z Mart robbery and sentenced to 5 years. As a habitual offender, the jury was instructed that Walker was punishable by a term of not less than 20 years nor more than 60 years. The jury fixed his sentence at 35 years for aggravated robbery and one year in jail and a $1,000 fine for misdemeanor theft, and judgment was entered accordingly.
I. THE RIGHT TO TRIAL BY JURY
The appellant first contends that his Sixth Amendment right to a jury trial was burdened by his having to choose between seeking a severance and risking application of the Habitual Offender Act on the one hand, and not seeking a severance and increasing his chances of conviction when the jury was presented with evidence of the robbery of two stores on the other. He claims that he was entitled to have the counts severed because the offense on April 6,1991 (Schickel’s Cleaners), and the offense of April 9, 1991 (E-Z Mart), were separate and distinct and only joined because they were similar in nature. He urges that under these circumstances he should not be subjected to an enhanced penalty due to a conviction on the severed charge.
We begin by noting that it is the prosecuting attorney who has the discretion to file a criminal information under Arkansas law, and only the prosecutor has the authority to amend that information. Ark. Const. amend. 21, § 1; Simpson v. State, 310 Ark. 493, 837 S.W.2d 475 (1992). In this matter, the prosecutor chose to file charges relating to an April 6, 1991 robbery at Schickel’s Cleaners in the same felony information with charges for an April 9, 1991 robbery at E-Z Mart. The appellant offers no authority to support his contention that the prosecutor did not have discretion over whether to file one information on the offenses or two informations. Indeed, the law is to the contrary. There is no question that had the prosecutor filed two informations, which was clearly within his authority, the first conviction would have been admissible for enhancement purposes irrespective of the fact that the conduct at issue in the first trial occurred after the conduct at issue in the case at bar. Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991).
The appellant was properly found to be a habitual offender as he had two prior felony convictions — an August 25, 1992 conviction, and the November 17,1992 conviction relating to E-Z Mart. There was no error by the trial court in this regard.
II. PRESENTENCE REPORT
The appellant’s second asserted error is that the trial court refused to present information to the jury about the appellant comparable to what the court would have received in a presentence report on a guilty plea. See Ark. Code Ann. § 5-4-102 (Supp. 1993). This, according to Walker, violated his equal protection rights.
The record reflects that the trial court did allow Walker to tell the jury that he had harmed no one in his previous crimes. The appellant also asked that the terms of his prior convictions be given to the jury, and this was done during the penalty phase of the trial. What Walker was forbidden to argue to the jury was the range of penalties at issue in the prior convictions. The trial court ruled that this information was irrelevant to the instant case.
We do not need to reach the issue of whether the trial court’s ruling was correct. The appellant couches his argument on appeal on an equal protection premise. That argument, however, was not made to the trial court and hence it was not preserved for appeal. This court has repeatedly stated that it will not consider an issue raised for the first time on appeal. See, e.g., Gaines v. State, 313 Ark. 561, 855 S.W.2d 956 (1993); Tisdale v. State, 311 Ark. 220, 843 S.W.2d 803 (1992); Walker v. State, 301 Ark. 218, 783 S.W.2d 44 (1990). We again refuse to do so in this case.
III. DEFECTIVE JURY PANEL
The appellant finally argues that the trial court was in error in refusing to strike the jury panel on grounds that it contained too few blacks. The appellant contends before this court that he prematurely concluded his efforts to seat another black juror for fear he would influence the other jurors if they realized he was challenging the jury’s racial makeup. He claims that there were about 4 blacks in the 38-person jury pool, although we have no records before us to verify this information, and defense counsel, admittedly, is unsure of the precise numbers. He concludes that this court should remand this case for a determination of the racial makeup of the jury to prove that the panel represented a cross section of the community.
The law on this matter has been established. The appellant has the burden of proving the systematic exclusion of black jurors from the venire. Gillie v. State, supra; Sanders v. State, 300 Ark. 25, 776 S.W.2d 334 (1989); Walton v. State, 279 Ark. 193, 650 S.W.2d 231 (1983). To make a prima facie showing of systematic exclusion, the appellant has to establish the following: (1) the group allegedly excluded is a distinctive group in the community; (2) the representation of this group in the venire is not fair and reasonable in relation to the number of such persons in the community; and (3) the under representation is due to systematic exclusion. Only after the appellant has made his prima facie case by establishing these three elements does the burden shift to the State to justify its procedure. Sanders v. State, supra.
Here, there is no dispute that blacks represent a distinctive group in the community. However, the appellant did not establish the second and third elements of the Sanders test. The appellant is not certain about the racial composition of the jury pool. Added to that, he offers no statistical proof of the racial composition of the community or of the venire. Furthermore, he completely fails to offer any evidence of systematic exclusion. As a result, the appellant does not make his prima facie case, and, therefore, the burden never shifted to the State to justify its procedure. The trial court correctly denied the appellant’s objection to the jury panel.
As a final point, we emphasize once more that we will not remand a case in order for an appellant to garner more information to bolster his posture on appeal. Unlike some of our sister states, in Arkansas we entertain only one appeal from a final judgment or order which completely disposes of all issues involving all parties. Ark. R. App. P. 2(a)(1). It is incumbent upon the appellant to present a case before the trial court which fully and completely develops all issues. This, by the appellant’s own admission, was not done. Accordingly, we do not acknowledge the remedy requested by Walker. The trial court correctly refused to quash the jury panel.
Affirmed. | [
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Per Curiam.
Petitioner Benny Hughes, by his attorneys, has filed a motion for a rule on the clerk. His attorneys, Dale Grady and William F. Magee, have by affidavit admitted it was their fault that the record was not timely tendered.
We find that the error, admittedly made by the criminal defendant’s attorneys, is good cause to grant the motion for a rule on the clerk.
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Worthington has requested that the clerk accept the record tendered as a result of his notice of appeal. The clerk has refused to file the record because it was not tendered in conformance with Ark. R. App. P. 5(a) and 5(b).
Rule 5(a) provides in pertinent part as follows:
The record on appeal shall be filed with the clerk of the Arkansas Supreme Court and docketed therein within 90 days from the filing of the first notice of appeal, unless the time is extended by order of the trial court ....
Rule 5(b) provides in pertinent part as follows:
In cases where there has been designated for inclusion any evidence or proceeding at the trial or hearing which was stenographically reported, the trial court, upon finding that a reporter’s transcript of such evidence or proceeding has been ordered by appellant, and upon a further finding that an extension is necessary for the inclusion in the record of evidence or proceedings stenographically reported, may extend the time for filing the record on appeal, but the order of extension must be entered before the expiration of the period for filing as originally prescribed or extended by a previous order ....
(Emphasis added.)
The relevant dates in this case are as follows:
May 9, 1989 Judgment
June 7, 1989 Notice of appeal
September 7, 1989 Order granting extension
October 24, 1989 Record tendered to clerk
The time period between the notice of appeal and the order granting an extension of time for the filing of the record is 92 days; consequently, Worthington’s counsel has not complied with the proper procedure for filing the record.
We have held that where a defendant’s attorney admitted that the record was tendered late due to his miscalculation of the time for filing the record, then such error, admittedly made by the attorney for a criminal defendant, was good cause to grant the motion for rule on the clerk. Robbins v. State, 287 Ark. 199, 697 S.W.2d 118 (1985). Conversely, we have stated that where the attorney does not admit fault on his part for the failure to timely file a transcript, then good cause is not shown for granting a motion for rule on the clerk. West v. State, 297 Ark. 392, 763 S.W.2d 69 (1988).
Worthington’s counsel states that he “will promptly submit to the Court an affidavit accepting responsibility for the failure to timely file the transcript . . . upon the ruling of the Court that will allow such pleadings to be effective.” However, this statement by Worthington’s counsel does not admit fault for the untimely filing of the record.
Effective assistance of counsel is a fundamental requirement which cannot be denied any person accused or convicted of a serious crime, and failure of the trial counsel to perfect an appeal of a conviction of a serious crime amounts to a denial of the defendant’s right to effective assistance of counsel. Chandler v. State, 297 Ark. 432, 762 S.W.2d 796 (1989).
Ark. Code Ann. § 5-65-103 (1987), addresses the offense of DWI:
(a) It is unlawful and punishable as provided in this act for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.
(b) It is unlawful and punishable as provided in this act for any person to operate or be in actual physical control of a motor vehicle if at that time there was one-tenth of one percent (0.10%) or more by weight of alcohol in the person’s blood as determined by a chemical test of the person’s blood, urine, breath, or other bodily substance.
Ark. Code Ann. § 5-65-111 (1987) provides for the prison term, in regard to the first offense, as follows:
(a) Any person who pleads guilty, nolo contendere, or is found guilty of violating § 5-65-103 may, for a first offense, be imprisoned for no less than twenty-four (24) hours and no more than one (1) year, except that the court may order public service in lieu of jail, and, in such instance, the court shall include the reasons therefor in its written order or judgment.
Worthington was convicted of driving while intoxicated, first offense, and “sentenced to serve two days in the White County Detention Center, with credit for two days already served, and the Defendant shall attend mandatory DWI School as required by Arkansas law.”
In Alexander v. State, 258 Ark. 633, 527 S.W.2d 927, we held that an uncounseled municipal court conviction involving only a fine and valid for that purpose cannot be collaterally used to revoke a suspended sentence since the effect is the actual deprivation of a person’s liberty without the guiding hand of counsel; although, it may be shown that the facts giving rise to the municipal court conviction are sufficient themselves to revoke a suspended sentence.
In Alexander v. State, supra, we stated:
In considering the right of an indigent to the appointment of counsel in misdemeanor cases, the Untied States Supreme Court in Argersinger v. Hamlin, 407 U.S. 25 (1972), commented as follows:
We must conclude, therefore, that the problems associated with misdemeanor and petty offenses often require the presence of counsel to insure the accused a fair trial. MR. JUSTICE POWELL suggests that these problems are raised even in situations where there is no prospect of imprisonment. Post, at 48. We need not consider the requirements of the Sixth Amendment as regards the right to counsel where loss of liberty is not involved, however, for here petitioner was in fact sentenced to jail. And, as we said in Baldwin v. New York, 399 U.S., at 73, “the prospect of imprisonment for however short a time will seldom be viewed by the accused as a trivial or ‘petty’ matter and may well result in quite serious repercussions affecting his career and his reputation.”
We hold, therefore, that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.
In addition, it was held in Scott v. Illinois, 440 U.S. 387 (1979), that:
The Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense.
Although Worthington’s pleadings do not establish whether his counsel was retained or appointed, the Sixth Amendment’s right to counsel applies to both indigent defendants and to defendants who retain counsel. See Cuyler v. Sullivan, 446 U.S. 335 (1980).
The Sixth Amendment right to counsel is the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984). Inadequate assistance does not satisfy the Sixth Amendment right to counsel made applicable to the States through the Fourteenth Amendment. Cuyler v. Sullivan, supra. Accordingly, Worthington’s sentence of two days imprisonment entitled him to the effective assistance of his counsel.
In this case, Worthington’s counsel did not comply with the proper procedure for filing the record in his client’s appeal, in that he tendered the record two days after the filing deadline, Ark. R. App. P. 5(a) and 5(b); as a result, his actions constitute ineffective assistance of counsel. See Chandler v. State, supra. Consequently, in view of the holdings in Scott v. Illinois, supra, Alexander v. State, supra, and Chandler v. State, supra, we find that Worthington’s motion for rule on the clerk should be granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Tom Glaze, Justice.
The appellant appeals from his convictions of two counts of theft of property, attempted capital murder and aggravated robbery, which were the result of a robbery at the Show Biz Pizza Restaurant in North Little Rock. He was sentenced to life imprisonment on his aggravated robbery conviction and received sixty (60) years total on his other convictions. His sentences are to run consecutively. On appeal, the appellant argues that there is insufficient evidence to support his conviction for attempted capital murder, that he received ineffective assistance of counsel during the preliminary stages of his trial, and that the trial court erred in denying certain pretrial motions. We find no error, and therefore affirm.
The appellant and an accomplice, Aulden Thomas, are charged with robbing Show Biz Pizza early in the morning on July 19,1988. While the armed suspects waited almost two hours for the manager to arrive with the combination to the safe, they forced the employees, as they showed up for work, to lie face down in the storage room. When the manager, Cheryl Bolin, arrived, the men forced her at gun point to open the safe. After taking the money, they left in an employee’s car, a blue Monte Carlo. While this robbery was taking place, the police had been called to investigate a car parked in a reserved parking place at Twin City Printing Company located next door. The keys were found in the car, and two holsters and a police scanner were on the floorboard. Upon further investigation, the police found a .357 magnum revolver. While this investigation was taking place, the police observed a blue Monte Carlo drive by slowly and turn around and drive back by. Officer Tanner became suspicious and followed the car in his vehicle. A police chase ensued, and the appellant and Thomas ended up wrecking the car and running on foot. The police officers chased after the armed suspects, and several shots were fired. The appellant and Thomas were finally cornered, arrested and taken to the North Little Rock police station.
Appellant first argues that there is insufficient evidence to support his conviction for attempted capital murder. Specifically, the appellant argues that the state did not prove that he fired his gun at the police officers involved in the chase. We disagree. According to the jury instructions, the appellant was charged with the offense of attempted capital murder for having the premeditated and deliberated purpose of causing the death of a law enforcement officer when that person was acting in the line of duty and with engaging in conduct that was a substantial step in a course of conduct intended to culminate the commission of the capital murder. See Ark. Code Ann. § 5-10-101(a)(3) (Supp. 1989); Ark. Code Ann. § 5-3-201(b) (1987).
In a challenge to the sufficiency of the evidence, this court reviews the evidence in the light most favorable to the appellee and sustains the conviction if there is any substantial evidence to support it. See, e.g., Williams v. State, 298 Ark. 484, 768 S.W.2d 539 (1989). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion or conjecture. Id. We need only to consider evidence in support of the conviction. Id.
In keeping with these tenets, we note that Officer Wright testified that he heard two shots and that Officer Tanner had informed him that the appellant had fired. Officer Mask, another policeman involved in the chase, testified that he heard one, possibly two shots exchanged between Thomas and Officer Tanner, but that he could not say for sure who fired them. In addition, the officers’ testimony shows that when the suspects were cornered, Thomas was found in a crouched position trying to inject a bullet into the chamber of his gun. Officer Mask also testified that he fired a round at the appellant when he saw him jump across a ditch and turn towards him, and that he heard another round fired also. All of the officers testified that they saw the appellant and his accomplice point their guns at them and that they heard shots being fired. In addition, Courtney Rhodes, who was standing thirty-five feet away from where the suspects abandoned their car, testified that he saw the two suspects exit the car with their guns, run thirty to fifty feet, and turn toward the police, as they began the chase. At this time, Rhodes stated he heard two shots. When the appellant’s gun was recovered it had seven live rounds in the clip, but the gun had the capacity of eight live rounds. In Thomas’s gun, two live rounds were jammed into the chamber.
While the appellant prefers to focus on the police officers’ testimony that they could not say for sure who fired the shots they heard, we conclude that the above testimony is clearly sufficient to support the appellant’s conviction of attempted capital murder. It is the jury’s job to resolve any contradictions, conflicts and inconsistencies in a witness’s testimony, and in doing so the jurors may believe the parts of his testimony they believe to be true and disregard those they believe to be false. See Henderson v. State, 255 Ark. 870, 503 S.W.2d 889 (1974).
In his second issue, the appellant argues that his two prior attorneys were ineffective during the pretrial hearings. The state contends that this argument can only be made by a separate petition for post-conviction relief. We agree. In Whitmore v. State, 299 Ark. 55, 771 S.W.2d 266 (1989), this court abolished A.R.Cr.P. Rule 37 effective July 1, 1989, and amended A.R.Cr.P. Rule 36.4 to provide that a defendant may assert his or her claim of ineffective assistance of counsel on direct appeal. In so doing, we noted that the persons who have been convicted and sentenced during the existence of Rule 37 may still proceed under that Rule. The appellant was sentenced on March 22, 1989 — over two months prior to our abolishing Rule 37 and amending Rule 36.4. We have stated that claims of ineffective assistance of counsel cannot be raised for the first time on appeal, but that a separate petition for post-conviction relief is the appropriate forum for such claims. See Dokes v. State, 299 Ark. 178, 772 S.W.2d 583 (1989); Bishop v. State, 294 Ark. 303, 742 S.W.2d 911 (1988). Since Rule 37 was still effective at the time of the appellant’s sentencing, his claim of ineffective assistance of counsel must be brought under that Rule.
Lastly, the appellant argues that the trial court’s denial of his motion for a continuance, his motion for the judge’s recusal, and his motion for the suppression of a jacket and keys, found in the jacket’s pocket, violated his sixth and fourteenth amendment rights. The appellant made a motion for a continuance on the day before trial so that he could locate two witnesses to testify that the car the police found in the Twin City Printing parking lot was broken down that day. After making the motion, the appellant told the trial judge that he did not know the address or phone numbers of the witnesses. In addition, the appellant fails to show how this testimony would help his case. The trial court held that there was no showing that these witnesses could be located if a continuance was granted. Whether to grant a continuance is addressed to the sound discretion of the trial court, and we will not reverse unless that discretion has been abused. See, e.g., Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987). Under these circumstances, we cannot say that the trial court abused its discretion. Likewise, we find no merit in the appellant’s motion for the trial judge recusal. In fact, from our review of the record, we believe that the trial judge showed both patience and fairness in handling this case.
Finally, appellant argues a jacket, and keys to the stolen blue Monte Carlo, found in the jacket, should not have been admitted into evidence. Appellant was wearing the jacket at the time of his arrest. After his arrest, the jacket was found in the hallway outside the interrogation rooms. No one was able to explain how the jacket ended up in the hallway. When the appellant was being taken to the holding cell, a police officer asked him if it was his jacket. The appellant replied in the affirmative, and when the officer picked up the jacket to give it to the appellant he discovered the set of keys. At a pretrial hearing, the trial judge suppressed the appellant’s statement showing ownership of the jacket, but the jacket and keys were allowed into evidence. The appellant asserts a “chain of custody” theory that basically suggests that someone placed the keys in the jacket between the time of appellant’s arrest and when appellant was being taken to a holding cell. In doing so, the appellant suggests that the jacket and the keys were the only sufficient proof linking him to the robbery and the getaway vehicle. We find the appellant’s argument meritless.
First of all, the appellant was photographed wearing the jacket at the time of his arrest, and was seen fleeing from the blue Monte Carlo. We have held that when an object is subject to positive identification the proof of chain of custody need not be conclusive. White v.State, 290 Ark. 130, 717 S.W.2d784 (1986). Clearly, here the jacket and the keys were subject to positive identification.
Furthermore, even if we were to accept the appellant’s argument that the jacket and the keys should have been suppressed, in view of the overwhelming evidence of the appellant’s guilt, it would be harmless error. See Jarreau v. State, 291 Ark. 60, 722 S.W.2d 565 (1987). Such evidence includes testimony from witnesses that directly identify appellant as one of the robbers, and testimony from numerous police officers identifying the appellant as the person driving the stolen car during the police chase. In addition, evidence of the robbery was found in the stolen car immediately after the appellant and his accomplice abandoned it. In sum, the state’s proof showing that the appellant committed the robbery and stole the car was overwhelming.
.For the reasons stated above, we affirm. In accordance with Ark. Sup. Ct. R. 11(f), we reviewed all objections decided adversely to the appellant, and we find no error.
In pointing out this evidence, we note that the jury was instructed on accomplice liability. We have stated that there is no distinction between the criminal responsibility of an accomplice and the person who actually commits the crime. Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981). | [
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Darrell Hickman, Justice.
For the third time, a jury has sentenced Edward Charles Pickens to die for a murder committed in 1975, and for the third time we are hearing his appeal. We affirmed his original conviction and sentence in Pickens v. State, 261 Ark. 756, 551 S.W.2d 212 (1977), cert. denied, 435 U.S. 909 (1978). In 1983, the Eighth Circuit vacated the death sentence due to ineffective assistance of counsel in the penalty phase of the trial. Pickens v. Lockhart, 714 F.2d 1455 (8th Cir. 1983). A resentencing jury was empanelled and Pickens again was sentenced to death. We reversed in Pickens v. State, 292 Ark. 362, 730 S.W.2d 230, cert. denied,_U.S__, 108 S.Ct. 269 (1987), finding error in the limitation of mitigating circumstances presented to the jury. Yet another resentencing jury was empanelled, this time in Arkansas County at the defendant’s request, and Pickens was sentenced to death for the third time. He now appeals from that sentence, raising numerous issues. Finding no reversible error, we affirm.
The primary issue on appeal is whether AMCI 1509 is unconstitutional. The instruction and accompanying forms, which are used to determine the sentence in capital cases, tell the jury that in no event may a sentence of death be imposed unless three findings are unanimously made: 1) that one or more aggravating circumstances exist beyond a reasonable doubt; 2) that the aggravating circumstances outweigh beyond a reasonable doubt any mitigating circumstances found to exist; and 3) that the aggravating circumstances justify beyond a reasonable doubt the sentence of death. It is the third finding with which the appellant takes issue. He claims its language should have been altered so the jury might weigh the mitigating circumstances at all phases of deliberation. He proffered the following instruction:
That the aggravating circumstances when weighed against the mitigating justify beyond a reasonable doubt the sentence of death. (Emphasis added to show modification.)
The judge rejected the proposed instruction, and rightfully so. There is no need to weigh the mitigating circumstances again in the third finding. AMCI 1509 takes the jury through a three-step process. The jury may not proceed to the third step unless it has already decided that the aggravating circumstances outweigh the mitigating. The third finding allows the jury to reject the death penalty in spite of the fact that the aggravating circumstances outweigh the mitigating. See Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989); Clines v. State, 280 Ark. 77, 656 S.W.2d 684 (1983), cert. denied, 465 U.S. 1051 (1984).
We also note that the judge agreed to instruct the jury “if you make those findings you may [rather than will] impose the death penalty.” This modification was favorable to the defendant, but it was not legally necessary. See Ruiz v. State, supra.
The second argument concerning AMCI 1509 is based on the recent United States Supreme Court case of Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860 (1988). The Court held there was a defect in the language of Maryland’s sentence determination forms. Section II of the forms reads as follows:
Based upon the evidence, we unanimously find that each of the following mitigating circumstances which is marked “yes” has been proved to exist.
There follows a list of seven mitigating circumstances with blanks beside each marked “yes” or “no.” Then in the determination of sentence section, the instruction reads as follows:
If Section II was completed and all of the answers were marked “no” then enter death.
The Court found this language implied that if the jury did not unanimously agree on the existence of any single mitigating circumstance, it must impose the death sentence. There was a substantial probability that the jurors did not consider all mitigating evidence.
The appellant claims there is no meaningful difference between the Maryland and Arkansas sentencing forms, but they are, in fact, very different. Our Form 2, which accompanies AMCI 1509, expressly allows the jury to list mitigating circumstances which were found by some, though not all, of its members. Form 3 then allows the jury to determine if the aggravating circumstances outweigh any mitigating circumstances. Nothing in the forms indicates to the jury that a mitigating circumstance must be found unanimously before it may be considered in the weighing process. The potential for misunderstanding is not present in the Arkansas forms as it is in the Maryland forms. Therefore, we reject the appellant’s argument.
The appellant’s next major argument concerns the jury selection process. Citing Witherspoon v. Illinois, 391 U.S. 510 (1968), he claims it was error to exclude two venirepersons for cause since they did not make it unmistakably clear that they would automatically vote against the death penalty if selected.
The standard for determining if a venireperson should be excused for cause in this situation is no longer whether the venireperson makes it unmistakably clear that he or she would automatically vote against the death penalty. Instead, the court should decide if the juror’s views would prevent or substantially impair the performance of his or her duties as a juror in accordance with the instructions and oath. It is no longer necessary that the juror’s bias be shown with unmistakable clarity. Instead, great deference is given to the trial judge who sees and hears the potential jurors. The Court in Wainwright v. Witt, 469 U.S. 412 (1985), clarified its holding in Witherspoon to impose this more flexible standard, as we have recognized. See Williams v. State, 288 Ark. 444, 705 S.W.2d 888 (1986).
The trial judge committed no error in excusing the jurors in this case. Venireperson Lyndell Robinson waivered back and forth between saying she “probably could” impose the death penalty and that she did not believe in the death penalty. The judge finally excused her on his own motion. His decision was based on her inability to give a consistent answer to the death penalty question and on her response which indicated she would be led by other members of the jury rather than make her own decision.
Venireperson Rosemary Horner started out saying she was against the death penalty. When asked if she could impose the penalty, she replied “I guess I could if I had to,” but that she didn’t really want to. Later she said she “guessed” she could consider it and could keep an open mind “if I had to.” She was asked if she would refuse to vote for the death penalty no matter what and replied “no,” and finally said she could vote for the death penalty “if I had to.” The trial court was concerned that Mrs. Horner’s continuous response of “if I had to” indicated a person that might not be able to consider the death penalty even if the evidence justified it. Giving considerable deference to the trial judge’s ability to see and hear Mrs. Horner, we hold her excusal was not error.
Next, the appellant argues that he was forced to use peremptory challenges on nine venirepersons when the judge refused to excuse them for cause. In deciding whether a defend ant’s right to an impartial jury has been violated, the focus should not be on a juror who was peremptorily challenged, but on the persons who actually sat on the jury. Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273 (1988). The appellant does not contend that any persons who sat on the jury should have been excluded for cause. He received the impartial jury to which he is entitled and only complains of the loss of peremptory challenges. Under Ross v. Oklahoma, which was decided several months before this trial took place, that is not reversible error. See also Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988); Watson v. State, 289 Ark. 138, 709 S.W.2d 817 (1986).
The appellant claims next that his death sentence should be set aside because the jury ignored evidence of mitigating circumstances. The jury did find that one mitigating circumstance existed, which was that Pickens had suffered an unstable childhood and violence in his teenage years. However they did not find evidence of youth and domination by another person or of any accomplishments since incarceration, despite the fact that Pick-ens presented testimony on these matters.
Pickens was twenty-one years old in 1975 when he and two other men robbed a grocery store in Casscoe. Nine people who were in the store at the time were crowded into a small room while the robbery took place. When Pickens and the others determined that there was no room in which they could lock up their victims, they opened fire on them and shot them repeatedly as they lay helplessly on the floor. Two people were killed and five others were seriously injured.
At the sentencing hearing, one of the victims, Jerry Lockridge, testified that Pickens fired first, shooting Wes Noble at point blank range. Other shots, fired by Pickens or the others, then followed in rapid succession until the gun was emptied. The gun was then reloaded and at least one more shot was fired. Lockridge said, “during the entire time I was there, . . . Mr. Pickens was the individual doing the talking. . . he’s the one that told me to lay on the floor... he was the one that did the talking to Mr. Goacher when they found the money.” Lockridge said he perceived Pickens as the one in control of the situation. Another victim, James Weatherly, said Pickens was not acting on the instructions of anyone. From this evidence, the jury could reasonably have concluded that the mitigating circumstance of youth and domination by another person did not exist.
Pickens also presented evidence that he had corresponded with various young people since his imprisonment. However, the state’s evidence showed that Pickens had once enclosed a pamphlet in a letter to one student soliciting funds for his defense. The jury could well have found that these efforts by Pickens were insincere and self-serving.
In the next issue, the appellant argues that an improper remark made by the prosecutor during opening statement should have resulted in a mistrial. The prosecutor described the victims by age and race:
And when they were through, Wes Noble, a seventy-six year old black man laid dead; Jimmy Scherm, thirty-two year old white man laid dead; Thelma Gunnell, a sixty-two year old grandmother, white woman, lay raped twice, shot in the neck; Jerry Lockridge, twenty-seven year old white man lay shot in the neck. . . .
The appellant claimed the prosecutor’s purpose in referring to the races of the victims was to inflame the jury. He asked for a mistrial or that the jury be admonished. After a discussion with the court, he agreed that an admonition would draw undue attention to the remarks. The prosecutor denied his remarks were intended as inflammatory and he promised to employ no further racial connotations. The court readily agreed the subject should be avoided and denied the mistrial motion.
Racial descriptions are irrelevant in almost every instance in a trial. The race of a victim simply should not be mentioned to the jury unless necessary, but we do not find the remarks here warranted a mistrial. A mistrial is a drastic remedy only to be resorted to when there has been error so prejudicial that justice cannot be served by continuing the trial. Brewer v. State, 269 Ark. 185, 599 S.W.2d 141 (1980). Since the trial court did not abuse its discretion in denying the mistrial and there was no manifest prejudice to the appellant, we will not reverse. Williams v. State, 294 Ark. 345, 742 S.W.2d 932 (1988).
Two other issues involve the allegation of prosecutorial misconduct. The first involves the prosecutor’s closing argument in which he implied that Pickens had fabricated evidence of an abusive upbringing. Pickens suffered no prejudice since the jury unanimously found that this mitigating circumstance existed.
The second involves an objection made by the state during the testimony of Elaine Phillips, a witness on behalf of Pickens. Mrs. Phillips was a junior high school teacher who told the jury that some of her students had corresponded with Pickens. She had begun to testify about the effect of Pickens’ letters on the students when the state objected, saying Mrs. Phillips’ testimony on that point was irrelevant and such testimony should come from the students themselves. Pickens claims the objection was made in bad faith because Ark. Code Ann. § 5-4-602(4) (1987) allows mitigating evidence to be presented regardless of its admissibility under the rules of evidence in criminal trials. We have held that this statute does not open the way for irrelevant evidence. Hill v. State, 275 Ark. 71, 628 S.W.2d 284, cert. denied, 459 U.S. 882 (1982). There was a bona fide basis for the prosecutor’s objection, unlike the case of Timmons v. State, 286 Ark. 42, 688 S.W.2d 944 (1985) which is cited by the appellant.
Pickens also presents six evidentiary issues. First, he claims the state should not have been allowed to admit certain evidence from the guilt phase of his first trial at his resentencing proceeding because his counsel at that trial was found ineffective. The Eighth Circuit in Pickens v. Lockhart, supra, did not find counsel ineffective in the guilt phase of the first trial, only in the penalty phase. Therefore it was not error to admit the evidence.
Second, Pickens complains that the state attempted to introduce evidence that he killed Jimmy Scherm, one of the victims who died in the robbery (Pickens had only been found guilty of killing Wes Noble). The basis of Pickens’ argument is that the state introduced the evidence to prove the aggravating circumstance of commission of a prior violent felony. Ark. Code Ann. § 5-4-604(3) (1987). The prosecutor did not argue Scherm’s death to the jury as an aggravating circumstance. The only evidence that Pickens killed Scherm came from the victims’ general testimony of the crime. The state may prove the underlying facts of the murder in the resentencing proceeding. Ruiz v. State, supra.
Third, Pickens presented the testimony of Father Louis Franz who spoke of the good works and self-improvement Pickens had undertaken while in prison. On cross examination, the state asked Father Franz if he had once intervened in a case to prevent the death penalty from being carried out, even though it was against the wishes of the convicted man. The state was referring to Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988) in which Father Franz, as next friend, tried to appeal the death sentence of Ronald Gene Simmons after Simmons waived his appeal. Pickens objected to this reference to the Simmons case, but the trial court allowed the question. The state was attempting to show that Father Franz was so unalterably opposed to the death penalty that he would go to great extremes to keep it from being carried out. Wide latitude is allowed on cross examination to elicit facts impeaching the credibility of a witness and the scope of that examination is largely within the discretion of the trial judge. Alexander v. State, 257 Ark. 343, 516 S.W.2d 368 (1974).
The fourth evidentiary issue also concerns the cross examination of a witness. Pickens presented the testimony of Frank King who testified about prison conditions for death row inmates. On direct, Pickens asked King if death row prisoners were allowed in the general prison population to which King replied no. Some of King’s testimony left the impression that it was inhumane to house death row inmates in a restricted area. On cross, the prosecutor asked King, “You advocate capital murderers having access to the general prison population?” Pickens objected and asked for a mistrial. The question was proper and was responsive to matters elicited on direct examination.
Fifth, Pickens claims that a witness was allowed to mention his juvenile record in Michigan. Dr. Brad Fisher, a psychologist, testified that one of Pickens’ problems as a youth was lack of a structured environment. The state, attempting to show that Pickens had benefit of structure by incarceration in juvenile facilities, asked Dr. Fisher how many times Pickens had been incarcerated. Dr. Fisher replied twice as a juvenile and once as an adult. The crime for which Pickens was incarcerated as a juvenile in Michigan was never mentioned, nor was it argued as an aggravating circumstance. The judge’s decision to allow this line of questioning was correct.
Finally, Pickens claims that certain testimony elicited from his mother left the impression that he had participated in a murder in Michigan. He made no motion to have the testimony stricken, did not ask that the jury be admonished, nor has he shown the testimony was so prejudicial as to warrant a mistrial. Therefore, he cannot obtain reversal on this point. Birchett v. State, 294 Ark. 176, 741 S.W.2d 267 (1987).
Several other issues raised by Pickens have already been decided adversely to him either by this court or the United States Supreme Court. He claims the exclusion of jurors who are unable to impose the death penalty violates his right to a jury composed of a fair cross section of the community. This argument was rejected in Lockhart v. McCree, 476 U.S. 162 (1986). He questions the propriety of the state’s presenting a rebuttal witness and a second closing argument during a sentencing proceeding. In Pickens v. State, 292 Ark. 362, 730 S.W.2d 230 (1987), we held it was proper for the state to have the last closing argument because it has the burden of proving the aggravating circumstances outweigh the mitigating. We did not address the issue of rebuttal testimony, but the same reasoning applies. In order to effectively discharge its burden, the state must be empowered to rebut mitigating evidence. See State v. DePew, 38 Ohio St. 3d 275, 528 N.E.2d 542 (1988), cert. denied,_U.S__, 109 S.Ct. 1099 (1989). Pickens claims it is unconstitutional to empanel a jury for the purpose of sentencing alone; that the state should not be allowed to introduce evidence from the first trial at the resentencing hearing; and that it is not proper to allow the state to present evidence at the resentencing hearing that was not presented at the first trial. These arguments have been rejected by this court. See Ruiz v. State, supra; Pickens v. State, 292 Ark. 362, 730 S.W.2d 230 (1987).
Finally, Pickens claims, as he did in his last case, that there was not sufficient evidence to allow the jury to consider the aggravating circumstance of capital murder committed for the purpose of avoiding or preventing an arrest or effecting an escape from custody. Ark. Code Ann. § 5-4-604(5) (1987). Since the jury did not find that this circumstance existed, Pickens was not prejudiced. Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1986), cert. denied, 479 U.S. 1101 (1987).
The last issue we reach concerns the constitutionality of Ark. Code Ann. § 16-92-108(2)(b) (1987) which sets a $1,000.00 fee limit for attorneys representing indigents in capital cases. First we should point out that this case did not involve a full trial but a resentencing proceeding. Pickens’ attorney submitted a motion to the trial court asking for a fee of at least $8,480.00. The trial court agreed the statutory limit is unconstitutional and awarded a $1,700.00 fee. Appellant’s counsel appeals because the award is inadequate; the state cross-appeals claiming the $1,000.00 limit should have been observed. Amicus curiae briefs have been filed by the Arkansas Bar Association and by the Arkansas and National Associations of Criminal Defense Lawyers.
In State v. Ruiz, 269 Ark. 331, 602 S.W.2d 625 (1980), we held the attorney fee statute was not a “taking” of an attorney’s property without due process of law. As appellant points out, several jurisdictions that were once in accord with Ruiz have recently changed their positions. See, e.g., Makemson v. Martin County, 491 So.2d 1109 (Fla. 1986), cert. denied, 479 U.S. 1043 (1987); State ex rel. Stephan v. Smith, 242 Kan. 336, 747 P.2d 816 (1987); Jewell v. Maynard, 383 S.E.2d 536 (W.Va. 1989). Each of these cases involved a lawyer who was appointed by the court to represent an indigent defendant. Appellant’s counsel volunteered his representation in this case; he was not forced to represent Pickens. In fact, he represented Pickens before in the resentencing ordered by the Eighth Circuit. He has made no case for a due process argument.
In addition to his due process argument, appellant claims the statute is unconstitutional because it infringes on the inherent power of the trial court to regulate the practice of law. The legislature does not invade the court’s power by setting a limit on attorney compensation. See Makemson v. Martin County, supra.
Finally, it is argued that the fee limit endangers the appellant’s right to effective assistance of counsel. There is nothing in this case to indicate that the fee limit affected counsel’s representation of the appellant. Counsel quickly pointed out in oral argument that Pickens had received effective assistance in this proceeding. We readily agree that appears to be the case, so that argument must fail.
Whatever the trend may be to hold such fee limits unconstitutional, this is not the case in which we will reconsider the issue. We direct the trial court to reduce counsel’s fee to $1,000.00.
We are required in a death case to compare the crime with those of others receiving the death sentence. We have done so in this case and find the death sentence was appropriate.
We have reviewed all objections decided adversely to the appellant and have found no reversible errors. Ark. R. Sup. Ct. Rule 11(f).
Affirmed on appeal. Reversed on cross-appeal. | [
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Jack Holt, Jr., Chief Justice.
This appeal arises from an order of distribution of the proceeds of a wrongful death action and is the companion case to another case decided today, Brewer v. Lacefield, 301 Ark. 358, 784 S.W.2d 156 (1990).
On July 5,1984, Herman Edwin Jones, Sr., died in a motor vehicle accident near Ashdown, Arkansas. Roy Milton Brewer, William R. Gilham, and William T. Mills were also killed in the accident. Jones was survived by his widow, Terrie Dean Jones, four natural children, and two stepchildren. The probate court appointed the widow as personal representative of his estate.
The widow entered into a contingent fee contract with attorneys John Hainen of DeQueen and William Lavender of Texarkana, Arkansas, to pursue a claim for wrongful death, whereby she agreed to pay them one-third of all money and property collected. About the same time, the mothers of the four natural children entered into contingent fee contracts with attorney Ken Fuqua of Dallas, Texas, to prosecute a claim against those persons responsible for the death of Herman Jones.
Attorneys Hainen and Lavender filed suit on behalf of the personal representative against the driver of the truck, the trucking company, the leasing company, and the truck manufacturer, alleging that they were negligent. This case, along with a wrongful death action filed by the personal representative of the estate of Roy Milton Brewer, was tried to a jury in federal court in Texarkana, from February 29 to March 3,1988, with counsel for both parties actively participating in the trial.
The jury exonerated the manufacturer but found the other three defendants liable and awarded damages of $359,000: $4,000 to the estate; $100,000 each to the widow and two minor natural children; and $15,000 each to two adult natural children; and $12,500 each to two stepchildren. Roy Brewer’s widow, his estate, and his children obtained verdicts in the amount of $304,000.
The defendants had liability insurance of $500,000 to cover the accident. Prior to trial, the carrier settled with the estates of the other two men killed in the accident. The sum of $250,000 in insurance proceeds remained available for distribution to the beneficiaries of the Jones estate and the Brewer estate.
On April 21,1988, the personal representative of the Jones estate filed a report of litigation and prayer for distribution in the Probate Court of Sevier County. Out of the gross pro rata recovery of $135,369.54, she proposed that attorneys Lavender and Hainen be reimbursed for litigation expenses in the amount of $ 1,926.68 and be paid, pursuant to the contingent fee contract, $44,476.52. In addition, she stated that the judgment of the federal court awarded the estate $4,000 for funeral expense, and that this amount should be paid to Griffin Funeral Home of Corsica, Texas. She also recommended that she and the two minor natural children receive $23,934.18 each; that the two adult natural children receive $3,590.13 each; and that the two stepchildren receive $2,991.77 each.
The four natural children, through their independent counsel, contested the proposed distribution. The children objected to the personal representative’s petition for distribution in that it made no allowance for attorney’s fees to be paid to the children’s independent counsel. They asked that counsel, pursuant to their contingent fee contract, receive forty percent (40%) of the portion of the recovery payable to them and that the court distribute to Hainen and Lavender one-third of the portion of the recovery payable to the widow, the stepchildren, and the estate.
After hearing oral argument, the probate court entered an order of distribution, predicated upon the personal representative’s proposed order. From this order, the two adult natural children and the mothers of the two minor natural children appeal.
For reversal, appellants contend that the probate court erred in failing to equitably divide the attorneys’ fees between counsel for the personal representative and counsel for the natural children.
As we held in the companion case decided today, counsel for individual beneficiaries is not entitled to attorneys’ fees out of a portion of wrongful death proceeds attributable to the beneficiaries.
Appellants also make the argument, as was made in the companion case, that the appellee’s attorneys cannot recover a fee since they represented conflicting interests. Appellants allege that a conflict of interest is apparent in that the personal representative was the fourth wife of the decedent and had been married to him less than six months at the time of his death; that “animosities coupled with greed that seems to surface in death and divorce, led the personal representative and her attorney, John Hainen, to seek benefits for herself to the exclusion of the natural children — from the federal government, the City of DeQueen, and the State of Arkansas”; that during trial, appellants offered to “submit the damage issue for all the Jones’ heirs in one lump sum, and split said sum on a 5°/so basis” but “[ajppellee refused, apparently on the premise that she felt she should get a larger share of the pie to the exclusion of the natural children”; and that appellee has resisted appellants’ request that their independent attorney receive compensation out of the wrongful death recovery.
Simply put, there is no evidence in the abstract that the personal representative or her attorneys took a position before trial or at trial so adverse to that of the natural children that they could not be adequately represented by the attorneys. All indications are that the representation of the children’s interests was excellent. In fact, the natural children were awarded sixty-four percent (64 %) of the total verdicts. Furthermore, appellants voiced no objection to the personal representative’s or counsel’s representation of their interests or to selection of counsel until after the proposed order of distribution was filed, and made no attempt to remove the personal representative pursuant to Ark. Code Ann. § 28-48-105 (1987).
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Holt, J.
Appellee, Lyda Lovett, filed complaint against appellants in the Garland circuit court in which she alleged that as the widow of John Lovett, a retired fireman of the fire department of the city of Hot Springs, Arkansas, she was' entitled to a pension. Appellants, by demurrer and answer, denied that Mrs. Lovett was entitled to the pension claimed.
By agreement the cause was heard by the court, sitting as a jury, and from a judgment in favor of appellee comes this appeal. The cause was submitted on an agreed statement of facts.
John Lovett, appellee’s husband, after many years of faithful and efficient service as fireman, on March 15, 1933, was retired on a pension of $54 per month, which represented one-half of the salary received by him at the time of his retirement. This pension award was made to Mr. Lovett under the provisions of act 491 of the Acts of 1921. Mr. Lovett continued to draw this pension.each month until his death before eight o’clock oil the morning of April 1, 1941. John Lovett and appellee had no children. Mrs. Lovett, his -widow, was his sole survivor.
On this same date, April 1, 1941, an election was held by the city of Hot Springs, Arkansas, at which the following question, on an initiated ordinance, was submitted to the electorate of the city: “An ordinance to authorize and direct the city council of the city of Hot Springs to levy annually a tax of not more than one mill on the assessed value of the real and personal property within the city for the purpose of paying pensions to retired firemen, and pensions to widows and minor children of deceased firemen and widows and minor children of deceased retired firemen.”
Section 2 of the ordinance provides: “This ordinance shall take effect and be in force from and after its approval by the people of the city of Hot Springs.”
The agreed statement of facts contains this provision: “That the vote on said question was as follows: For initiated ordinance No. 2, 3,044. Against initiated ordinance No. 2, 20.
“That said initiated ordinance thereupon became law; that no tax was levied thereunder . . . ; the city council did not certify any tax to the county clerk to be collected by the tax collector for the year 1942, or any other year. The city had sufficient funds available in the funds received from the State Insurance Commissioner for 1942, and that is the reason no tax was certified for-collection.”
Act 491 of 1921, supra, under the terms of which Mr. Lovett was drawing a pension at the time of his death, makes no provision for a pension on behalf of the widow of a deceased fireman unless the fireman loses his life while in the performance of his duty. It is conceded here that appellee would not be entitled to a pension under the provisions of this act, but she insists, and the lower court so found, that she is entitled to her husband’s pension under the ordinance, supra, and subsequent legislation hereinafter referred to.
Under act 491, the fund out of which pensions to firemen are paid, is created by a two per cent, levy on all fire, tornado and marine insurance premiums collected in cities and towns of Arkansas maintaining a fire department of the value of $1,000 or more. The act provides that one-half of this two per cent, tax collected on insurance premiums within each city or town affected, shall be paid back to each city or town from which collected, as a fund to be paid out to eligible firemen by a board of trustees created by the act.
The Legislature of 1939, by act 30, amended act 491 of 1921. Among other things, it provided that each city or town affected might, by a vote, provide for a tax not to exceed 1 y2 mills, with which to supplement and add to the fund created under the 1921 act, supra, “for pensioned members of the fire department, and of the widows and orphans,” etc. The act further provided for acceptance of donations to the fund and deductions of one per cent, from the salaries of affected firemen.
That part only of act 30, which sought to enable cities and towns to levy a tax above the five mill limit, for all purposes as provided by the Constitution of Arkansas at that time, was declared by this court unconstitutional in Adamson v. City of Little Rock, et al., 199 Ark. 435, 134 S. W. 2d 558. In all other respects the validity of act 30 was not affected by that decision.
In 1940, amendment No. 31 to the Constitution of the state of Arkansas was enacted and put into effect. Under its provisions, cities and towns of the first and second class were permitted to vote a tax not to exceed two mills on the dollar, “from which there shall be created a fund to pay retirement salaries and pensions to policemen and firemen theretofore or therafter earned, and pensions to the widows and minor children of such, as may be provided by law. The annual levy for the Policemen’s Retirement Salary and Pension Funds shall not exceed one mill on the dollar, and the annual levy for the Firemen’s Retirement Salary and Pension Funds shall not exceed one mill on the dollar. The manner of such levy of the tax, and the eligibility for the retirement salaries and pensions, the several amounts thereof, and when payable, shall be such as may be provided by law.”
Subsequent to the passage of amendment No. 31, the Legislature of 1941 passed act 14, under the terms of which there is provision for pensions to widows of deceased retired firemen. 'Section 1 provides for elections in cities of the first or second class to vote a tax not to exceed one. mill for pensions to widows of deceased retired firemen and that the governing body of such city or town shall certify to the county clerk the rate of taxation levied to the end that the amount so certified be placed upon the tax books of the county by the county clerk and collected by him. The taxes thus collected “■Shall be turned over to the board of trustees of the Firemen’s Pension and Relief Fund of such city, created under act 491 of the Acts of the Arkansas General Assembly for the year 1921.”
Section 3 provides that the board of trustees of the Firemen’s Pension and Relief Fund shall “certify to the city an estimate of the amount of money necessary to pay . . . pensions to the widows ... of déceased retired firemen, for the following' year, and the city shall make its levy against the real and personal property of such city sufficient to raise and provide the sum of money estimated and certified by the board of trustees of the Firemen’s Pension and Relief Fund. Provided, the annual levy shall not exceed one mill on the dollar of the assessed value of the real and personal property within such city.”
Section 4 provides “The funds provided for herein shall be supplemental to and in addition to any funds provided for by any laws in effect at the time of the passage of this act, and shall become a part of the Firemen’s Pension and Relief Fund of such city, created under act 491 of the Acts of the Arkansas Legislature in 1921, and shall be administered by the board of trustees created by said act, to the same class of beneficiaries and in the same manner as'the funds provided for therein, it being the specific intention not to repeal act No. 491 of the Acts of the Arkansas Legislature of 1921, or any amendments thereto, but to provide additional money for the Firemen’s Pension and Relief Fund.”
On April 1, 1.941, as has been indicated, the city of Hot Spring’s by an overwhelming vote, adopted initiated ordinance No. 2, which provided for a tax not to exceed one mill to pay pensions to widows of deceased retired firemen and also that “The council shall make the rate of taxation, not to exceed one mill on the dollar of the assessed value of the real and personal property within the city of Hot Springs, sufficient to raise and provide such amount of money as the board of trustees of the Firemen’s Pension and Relief Fund certifies to the council will be required to pay pensions to retired firemen, and pensions to widows and minor children of deceased firemen and widows and minor children of deceased retired firemen, for the following year. If the amount certified to the council by said board of trustees is more than a levy of one mill will produce, the council shall make the full levy of one mill.
“Section 2. This ordinance shall take effect and be in force from and after its approval by the city of Hot Springs. ’ ’
It is conceded here that the ordinance in question was approved by the people of Hot Springs and became effective on April 1, 1941, but at a time on this date, subsequent to the exact hour or moment when appellee’s husband, John Lovett, died, it being conceded that Mr. Lovett died on the morning of April 1, 1941, but prior to eight o’clock.
The primary question presented is: Was the ordinance in effect when John Lovett died? It is our view that it was. This court has many times held that the law does not consider parts of a day. In Harris v. State, 169 Ark. 627, 276 S. W. 361, this court said: “Moreover; it may be said that the law does not consider parts of a day, etc.”
And in Lee Wilson & Company v. William R. Compton Bond & Mortgage Company, 103 Ark. 452, 146 S. W. 110, this court said: “Upon its approval, in conformity with the Constitution, the act is regarded as being in full force and effect during* the whole day upon which it is approved. Mallory v. Hiles, 61 Ky. (4 Met.) 53; Kennedy v. Palmer, 72 Mass. 316.”
In the Kentucky case, supra, cited with approval by this court, it is said: “In our opinion, according to the weight of reason, and the decided weight of authority, the act in question must be regarded as having been in force during the whole of the day upon which it was approved, in conformity to the general rule, that where a computation is to be made from an act done, the day on which the act is done is to be included. (Arnold, et al. v. The United States, 9 Cranch 104, 3 L. Ed. 671.”
The Supreme Court of the United States in Lapeyre v. United States, 84 U. S. 606, 21 L. Ed. 606, said: “There is no statute fixing the time when Acts of Congress shall take effect, but it is settled that where no other time is prescribed, they take effect from their date. Matthews v. Zane, 7 Wheat. 164, 5 L. Ed. 425. Where the language employed is ‘From and after.the passing of this act/ the same result follows. The act becomes effectual upon the day of its date. In such cases it is operative from the first moment of that day. Fractions of the day are not recognized. An inquiry involving that subject is inadmissible. Welman’s case, 20 Vt. 653, Fed. Case No. 17407. The'subject is there examined with learning and ability.”
And in the Welman case, 20 Yt, 653, supra, the court uses this language: “This was a direct recognition, that, in a question as to the time when a law takes effect, there are no parts or divisions of a day. The day is to be included, because, there being no fraction' of a day, the act relates to the first moment of the day on which it is done, and as if it were then done. This is the very reason given in the books for the rule the courts rely upon. Instead of intimating, that there could be any fraction of day in such a question, or that it would be proper to reverse the general rule of law and consider the act in force only from the last instant of the day, the court held, that the day on which the act was approved was to be included in its operation,”
We are clearly of the view, therefore, that this ordinance was in full force and effect on and after the first moment of the day it was approved, April 1, 1941, and at the time Mr. Lovett died, and that the trial court correctly found that appellee was entitled to the pension of $54 per month as his widow. The fact that the governing body of the city of Hot Springs made no levy of any part of the one mill permitted by the ordinance cannot affect appellee’s right to the pension in question, for the reason that under the terms of acts 30 and 14, supra, which are amendatory of the 1921 act, supra, it was clearly the intent of the lawmakers to give to the governing bodies of cities and towns affected, the discretionary power to supplement the fund created and distributed under the 1921 act, by levying and collecting any part of the one mill tax if necessary to pay the pensions allowed to widows of deceased retired firemen and any others entitled to pensions under the ordinance.
It must be remembered that the legislation, supra, contemplates that the Firemen’s Pension and Relief Fund, created out of the one-half of the two per cent, tax on all fire, tornado and marine insurance premiums collected within the cities and towns affected, may be materially supplemented or increased by donations and otherwise, and therefore that there may be pccasions, as in the instant case, when it becomes unnecessary to levy and collect any part of the additional one mill tax in order to pay all eligible pensioners.
On the whole case, finding no error, the judgment is affirmed.
The Chief Justice concurs. | [
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Smith, J.
Appellant, the plaintiff below, alleged the following facts as constituting a cause of action against appellee, the defendant below.
Plaintiff is a corporation engaged in selling building material, and the defendant Rambo-Miller Construction Company is a partnership doing business as a construction company, and the defendant National Surety Company is a corporation doing a surety and indemnity business. On June 12, 1926, the defendant Rambo-Miller Construction Company, hereinafter referred to as the construction company, entered into a building contract witb a committee of the First Baptist Church of Fort Smith to construct certain improvements on the church building, which bound the construction company to furnish all labor and material in the construction of said improvement. In conformity with the contract, the construction company entered into a bond with the National Surety Company, hereinafter referred to as the -surety company, as surety. So much of the bond as is necessary to consider here reads as follows:
“Know all men: That we, Rambo-Miller Construction Company, of Fort Smith, Arkansas, herein,after called the principal, and National Surety Company, hereinafter called the surety or' sureties, are held-and firmly bound unto the First Baptist Church of Fort Smith, Arkansas, hereinafter called the owner, in the sum of $35,000, for the payment whereof the principal and surety or sureties bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally, firmly, by these presents:
“Whereas, the principal has, by means of a written agreement dated June 12, 1926, entered into a contract with the owner for the furnishing of all labor and material and the construction of a -Sunday-school building and alterations and enlargement of the church auditorium, a copy of which agreement is by reference made a part hereof. Now therefore the condition of this obligation is such that, if the principal shall faithfully perform the contract on hi-s part and satisfy all claims and demands incurred for the same, and shall fully indemnify and save harmless the owner from all cost and damage which he may suffer by reason of failure so to do, and shall fully reimburse and repay the owner all outlay and expense which the owner may incur in making good any such default, and shall p-ay -all persons who have contracts -directly with the principal for labor -or materials, then this obligation shall -be null and void; otherwise it shall remain in full force -and effect. Provided, however, that no suit, action or proceeding by reason of any default whatever -shall be brought on this bond after six months from the day on which the final payment under the contract falls due.”
Plaintiff further alleged that, after the execution of the bond, the construction company purchased from it certain building material to be used in the construction of the improvement, and that, in, reliance upon said bond, plaintiff sold and delivered material to the construction company of the value of $568.70. An itemized statement of the material furnished was made an exhibit to the complaint. The construction company failed to pay for the material, as did also the surety company, upon demand, wherefore judgment was prayed against both the construction company and the surety company.
A demurrer ivas filed to this complaint by the surety company, which was sustained by the court, and, plaintiff refusing to plead further, the complaint against the surety company waá dismissed, and this appeal is from that judgment. '
It was held by this court, in the case of Thomas Mfg. Co. v. Prather, 65 Ark. 27, 44 S. W. 218, that, where a promise is made to one upon a sufficient consideration for the benefit of another, the beneficiary may sue the promisor for a breach of his promise, and that holding has since been adhered to by this court. Stewart-McGehee Construction Co. v. Brewster, etc. Mfg. Co., 171 Ark. 197, 284 S. W. 53. The question presented for decision is therefore whether the bond made a part of the plaintiff’s complaint was executed for the benefit of materialmen who furnished ‘material used in the performance of the building contract, or was for the exclusive benefit of the owner of the building.
It is virtually conceded by appellant that the bond here sued on is not a statutory bond, such as is authorized by §§ 6915 and 6916, C. & M. Digest, as it was not approved by the clerk of the circuit court of the county in which the building is situated, as is provided by § 6915, nor was it filed in the office of the clerk of the circuit court, as is required by § 6916. It is insisted, however, that, although the bond may not be a statutory bond, under which the surety would be liable to all materialmen and laborers, it is nevertheless a common-law bond, and.made, not for the benefit of the owner alone, but for the benefit of laborers and materialmen as well, and the correctness of this contention is the question for decision.
The leading case on this subject in this State is that of Eureka Stone Co. v. First Christian Church, 86 Ark. 212, 110 S. W. 1042. This case was decided by a divided court, and was later to some extent distinguished in the ease of Morris v. Nowlin Lbr. Co., 100 Ark. 268, 140 S. W. 6, in which last-mentioned case two members of the court voted to expressly overrule the first-mentioned case. It was not overruled, and has since been followed, but it has always been recognized as a borderline case, the doctrine of which yus not to be in any manner extended. The liability there sought to be enforced against the surety depended upon the construction of article fifteen of the bond, which read as follows: “That there shall be no liens filed on said building or work, either for labor done thereon or for materials furnished in its construction, and the contractor shall pay all artisans, materialmen and laborers doing work on or about said building or other-work; and if, for any cause, such lien shall .be filed by any person, then and in such casé the contractor shall pay and satisfy the amount that may be due and owing, ’ ’ etc.
In the opinion construing this bond it was said that the intention of the parties in executing it was to be gathered from -the whole instrument, and that, if it was intended to secure, the payment of materials furnished to the contractor, the materialmen should recover on the bond as one executed for their benefit, but that, if the bond only secured the church — the owner — against claims and liens, then it became a bond of indemnity to the church, and the materialmen were not entitled to recover thereon. The materialmen sought to recover in that ease upon the clause of the contract which provides that the .contractor shall pay -all the materialmen, but it was said, in answer to this contention, that the -subject in contemplation of the parties was the protection of the church against liens that might be asserted against the building. This view was adopted because the majority were of the opinion that the language immediately preceding, as well as that which follows, the portion of the bond quoted showed that the object in view was to protect the church from the filing of liens and to provide for their payment in case they were asserted.
Here, however, more comprehensive language was employed. The bond first provides that the principal— the construction company — “shall faithfully perform the contract on his part and satisfy all claims and demands incurred for the same, and shall fully indemnify and save harmless the owner from all cost and damage which he may suffer by reason of failure so to do, and shall fully reimburse and repay the owner all outlay and expense' which the owner may incur in making good any such default.”
If the bond contained only the provisions just stated, it could well be said, as was held in the Eureka Stone Company case, supra, that the bond was for the benefit of the owner only, and was intended to protect the owner against liens that might be asserted against the building by laborers and materialmen whose demands had not been discharged by the contractor. But the bond here sued on further provides that the construction company and its surety “shall pay all persons who have-contracts directly with the principal for labor or materials.”
If effect is given to the language last quoted as adding anything to the portion of the bond first quoted, it must be held that it was intended to impose the obligation, not only that the contractor should faithfully perform the contract on its part and satisfy all claims and demands incurred in its performance, and fully indemnify and save harmless the owner “from all cost and damage which he may suffer by reason of failure so to do, and shall fully reimburse and repay the owner all outlay and expense which the 'Owner may incur in making good any such default, ” as is first provided, but shall, in addition, “pay all persons who have contracts directly with the "principal for labor or materials,” as is further provided.
The improper use of pronouns appearing in the bond suggests the high degree of probability that the bond executed was such a blank form of bond as would have 'been used had §§ 6915 and 6916, C. & M. Digest, been complied, with by having it approved by and filed with the clerk of the circuit court, and there would be no question about liability under the statutory bond, as the purpose of the statute is to give all laborers and materialmen a cause of action on the statutory bond, the proper execution of which operates to deprive them .of a lien on the building which the statute gives where no statutory bond is executed. In other words, while the bond is not a statutory bond, in that it was not executed in the manner provided by the statute, its provisions and conditions are broad enough to cover the liability imposed by the statute had it been executed as the statute requires. We are of the opinion therefore that the bond was not executed for the sole benefit of the owner, but for the benefit of materialmen and laborers as well, and the demurrer to the complaint should not therefore have been sustained.
Opposing counsel have submitted briefs reviewing many cases from other jurisdictions in which sureties have been held liable under somewhat similar bonds for the satisfaction of the demands of materialmen and laborers, and other cases in which somewhat similar bonds were held to have been executed solely for the benefit of the owner. We do not review these cases, for to do so would require • a discussion of the points of difference between the various bonds construed. Moreover, it is believed that the cases of Eureka Stone Co. v. Church and Morris v. Nowlin Lbr. Co., supra, and the subsequent cases which have followed them, fully announce the principles which must control here.
The judgment of the court below is therefore reversed, and the cause remanded with directions to overrule the demurrer. | [
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Kirby, J.
This is an action begun by Belle Phillips against Marshall Tipton, Edra Davis and Bex Davis, in • the probate court of Johnson'County, for a nunc pro tunc order correcting the judgment of the probate court. The plaintiff alleged, in substance, that the record of the probate court showed that on the 18th day of March, 1922, a judgment of that court was entered through mistake, showing that certain minors, towit, Edra and Bex Davis, were adopted by Marshall Tipton and Euphemia Tipton, whereas the judgment that was actually rendered was for the adoption of said minors by Marshall Tipton alone, and not by Euphemia Tipton. The plaintiff alleged that she was the mother and only heir-at-law of Euphemia Tipton, who had since died, in December, 1925.
Tipton answered, denying the allegations of the complaint, and alleged that Euphemia Tipton was one of the parties to the adoption of the Davis children, and that the judgment of the probate court was correctly entered showing that she was the wife of Marshall Tipton and a joint party to the adoption proceedings with Marshall Tipton, and that the children were adapted in her name as well as in his.
The judgment of the probate court entered on March 13, 1922, recites that the Hon. J. J. Montgomery was the presiding judge. In the matter of the adoption of Rex and Edra Davis the following is the record entry of the judgment:
“In re adoption of Rex M. and Edra Davis, No. 45. On this day is presented to the court the petition of Euphemia Tipton and M. T. Tipton, stating that he desires to adopt Rex Murphy Davis and Edra Davis, minors, of the age of ten and twelve years, respectively. And it appearing to the court that the said minors are residents of Johnson County, that their father and mother are de'ad, and that they have no property, that they have been living with petitioner for nine years, it is therefore ordered by the court that the said minors be adopted by the said Euphemia Tipton and M. T. Tipton, and their names shall henceforth be Tipton, and they shall hold the same relation to the said petitioner as if they were their own children.”
Fred Russell testified, in substance, that he was the clerk of Johnson County in 1922. He identified petition by M. T. Tipton for adoption of Rex Murphy Davis and Edra Davis, minor children, sworn to on March 18, 1922. Witness did not know whether Mrs. Tipton was present at the time or not. The petition was signed by M. T. Tipton, and was the only paper that was filed on that day. Euphemia Tipton never swore to the petition before witness. Another petition wlas introduced and identified by the witness', which reads as follows:
“In the Probate Court of Johnson County.— Euphemia — M. T. Tipson — Petition for adoption of Rex Murphy Davis and Edra Davis, minor children.
‘ ‘ Comes your petitioner, M. T. Tipton, and states that he is desirous of adopting Rex Murphy Davis and Edra .Davis, two minor children, who are residents of Johnson County, Arkansas, and aged ten and twelve years, respectively; that said children have no father and mother and no property; that they have been living with the petitioner for nine years, and that he thought said children had been adopted at the time he took them. "Wherefore your petitioner asks the court to grant his prayer and adopt the said children.
“M. T. Tipton, Petitioner.
“Subscribed and sworn to before me this the 18th day of March, 1922.
“Fred Russell, County Clerk.”
(On back) “No. 15. Petition for adoption of Rex M. and Edra Davis.
“3/13/22. Examined, and prayer granted, and said children ordered adopted. J. J. Montgomery, Judge. ’ ’
The -witness stated that the changes that now appeared on the last petition above copied, he thought, were made before the petition was presented to the court. They were all made at the time Tipton made the affidavit, and were not made after the case was heard by the court. Witness further testified that he did not think Euphemia Tipton was present, and she did not make the affidavit to the petition. If she had, witness would have had her to sign it. Witness was asked what caused him to put her name at the top of that petition, and answered that he did not remember, but his opinion was that, when Judge Montgomery changed Marshall to Tipton, that brought it to witness’ mind that if it was Tipton in the style of the case it would be Tipton in the body of the petition, and witness changed that on his own initiative. Witness did not remember that Mrs. Tipton was in his office. He did not remember seeing any of them, and did not remember Tipton being there, but knew that he was because he swore to the petition.
J. J. Montgomery testified that he was county judge of Johnson County on the 13th day of March, 1922. He drafted the original petition in his office for Mr. Tipton. “Euphemia” was put in there after he had drafted the petition. Witness’ recollection is that he drafted the indorsement on the back of the petition at his office. ■After he drafted the petition, he gave it to Mr. Tipton, and told him to take it over to the clerk’s office. The word “Enphemia” in the caption to the last petition set out above was inserted after it left witness’ office. The first time witness knew about the word Euphemia being inserted in the caption was when Mr. 'Brock brought it over to witness and called witness’ attention to it, about the time this action was begun — some time last summer. In making the indorsement on the back of the petition, to-wit, “Examined, and prayer granted, and .said children ordered adopted,” signed by witness, it wlas witness’ intention to make the order of adoption as it read at the time witness made the indorsement. The clerk prepared the form of the record entry. Mr. Bussell was the clerk at that time. Euphemia Tipton was not present when witness made the order. Mr. Tipton came to witness’ office one day,'and said that he wanted to adopt these children, and to know if he could adopt .them, and witness 'asked him some questions — where the children were living, and with whom, and he told witness that they were living with him, and had been for several years. Witness asked him about their parents, and thinks that he told witness that their parents were dead. Witness asked Tipton to bring the children down and let witness talk with them, and he said that he would. One day not long thereafter he came in and brought the children and said, “Here are these children. You can ask them whatever you want to, or talk to them about the adoption.” Witness sat down in his office and talked to the children about the adoption, and Mr. Tipton was with them, but Mrs. Tipton was not. They told witness that they wanted Mr. Tipton to adopt them. Mrs. Tipton never made any request for the adoption, and no one for her made such request.
On cross-examination witness stated that it was his idea to do what Mr. Tipton wanted about it. He was trying to comply with his wishes, He was asked if he told Marshall Tipton that it ivas necessary for his wife to join in the petition, and stated that he did not remember ; that he might have done it. Witness was asked the following question: “Did you tell him that the petition of one wlas the petition of both of them — that it was not necessary for his wife to sign it? A. No, I didn’t tell him that; if I told him that it wasn’t necessary for his wife to sign it, it was bedause he wanted to adopt them, and his wife wasn’t known in it; that would have been the only reason I would have told him that.” Witness did not remember whether Tipton asked him if he hadn’t better have his wife sign it too. Witness examined the petition, as it had been changed, and said that none of the changes were made in the petition at the time he approved it, except the word “Tipton” was written by him with an indelible pencil. He did not write the word “Tipton” in ink, and did not write the word “Euphemia” or the word “Tipton” as it is written at the other places in the petition. Witness changed the word “Marshall” as it appeared in the original petition to “Tipton” as soon as he took it out of the typewriter, so as to make it read “Marshall Tipton.” Witness explained that the court convened on Monday, which was the 13th, and if the petition was dated on the 18th, as it appeared, and was indorsed on the 13th, as it also appears, witness dated it back so as to make it appear that it was allowed on Monday, the day the probate court was in session. Witness ’ purpose was to do what Marshall Tipton wanted done at that time, and he told witness that he wanted to adopt the children. If he had come in and asked to have the children adopted by himself and wife, witness would have done it that Avay. Witness remembered very distinctly talking to the children and about Tipton bringing the children to let AAdtness talk to them. Witness erased the word “Marshall” and wrote the word “Tipton” in pencil in the heading of the petition. Witness Avould not have included Mrs. Tipton in the petition unless she had been there to .sign it. When a man and his wife adopted children, AAdtneS'S had them both present, and would not have entered an order of adoption for both of them without both being present. When only one wanted to adopt, then witness did not require the other party to be present. Witness signed the probate record approving the same, but never did relad every word in a record — all witness did was to see that all the cases were on record, but did not read the body of the order. The clerk was recalled, and testified that he wrote the record of the orders, and tried to write the same to state the facts as recited in the petition and granted by the court. Witness did not remember whether the approval on the back of the petition wlas on the same when it was- brought to witness.
Tipton testified that he signed the petition for the adoption of the two minor children. It was prepared in the clerk’s office by Judge Montgomery. Witness and his wife and the judge and Mr. Russell were present. The witness a-sked the judge if it was necessary for his wife to sign it, and he replied that it was not necessary. Witness ’ wife was present there with witness at the time. The children were not with them that day. Witness had brought them in before thlat to have Judge Montgomery talk with them, and, about a week or ten days thereafter, witness and his wife had them adopted. Witness’ wife was present when her name was written in the petition. They came to town for that purpose. Witness’ wife told the judge at that time that she wanted the childfen adopted — that she had no children of her own, and what little property they had they wanted these children to have it. That was his wife’s request on that occasion. Russell, the clerk, swore witness to the petition about the 13th of March, the day that Judge Montgomery wrote the petition for witness. It was done right there in the clerk’s office. 'The judge told witness that it was not necessary for witness or witneiss’ wife to sign it; that the court’s order would be sufficient. Witness thought it would be best to sign it, as that wlas the way he always did business. Witness’ wife took the judge at his word, and did not sign it. Witness’ wife stood there and heard the whole conversation.
The defendant offered to prove that the names of the family were written in the family Bible by Jim Stoveall, at the request of Mrs. Tipton. These names were as follows: “M. T. Tipton, Euphemy Tipton, Edra Tipton and Rex Tipton, adopted children of M. T. and Euphemia Tipton, in December, 1925. ” The court would not admit this testimony, to which ruling* of the court the defendant at the time duly excepted.
The probate court denied the petition, and refused to amend the record, and the cause was appealed to the circuit court, where the testimony as above set forth was adduced. The circuit court found that the entry of the judgment of the probate court showing that the minors were adopted ¡by Euphemia Tipton and M. T. Tipton was erroneous, and that such record of the judgment entry ‘ ‘ should be amended by mmc pro tunc order so as to show that said minors, Rex Murphy and Edra Davis, were adopted by M. T. Tipton alone,” and entered a judgment in accordance with its finding, from which is this ¡appeal.
1. The fourth ground of appellant’s motion for a new trial was. that “the court erred in finding Mrs. Belle Phillips is entitled to maintain this suit to correct the record in a proceeding in the probate court of Johnson County, Arkansas, to which she was not a party. ’ ’ The question of defect of parties was not raised by the appellant in its answer,, nor ¡by .special plea for that purpose. A defense of defect of parties should be raised by answer or by special plea to that effect at the beginning and not at the end of a lawsuit. Since the appellant did not plead a defect of parties until after the trial was concluded, he must be deemed to have waived such defect. Yarnley v. Thompson, 30 Ark. 399; Cartwright v. Dennis, 163 Ark. 503, 260 S. W. 424; Summers v. Heard, 66 Ark. 550, 50 S. W. 78; 51 S. W. 1057; Arkansas Road Construction Co. v. Evans, 153 Ark. 142, 239 S. W. 726; see also Flanagan v. Drainage District No. 17, ante, p. 31.
2. The issue on the application to correct the judgment of the probate court by nunc pro time entry is purely one of fact as to whether or not the judgment as entered was the judgment actually rendered. We have fully set out the evidence on this issue, and it speaks for itself. It would serve no useful purpose to comment at length upon it.
We have reached the conclusion that the testimony is not clear, decisive and unequivocal to the effect that the record of the judgment of the probate court 'as originally written does not reflect the judgment that was actually rendered 'by that court. The proof therefore adduced by the appellee does not meet the requirement of the law as announced in our former opinions. See Midyett v. Kirby, 129 Ark. 301, 195 S. W. 674; Murphy v. Citizens’ Bank of Junction City, 84 Ark. 100-106, 104 S. W. 187, 934, and cases there cited; Sloan v. Williams, 118 Ark. 593, 597, 177 S. W. 427; see also McGuigan v. Gaines, 71 Ark. 614, 77 S. W. 52; Goerke v. Rodgers, 75 Ark. 72, 86 S. W. 737; Foster v. Beidler, 79 Ark. 418, 96 S. W. 175; Davenport v. Hudspeth, 81 Ark. 166, 98 S. W. 699.
The judgment of the trial court must therefore be reversed, and the causé remanded with directions to the circuit court to affirm the judgment of the probate court.
Wood, J., dissents. | [
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Mehaffy, J.
The appellant, who was plaintiff below, filed its complaint in the Jefferson Circuit Court in replevin, alleging that it had sold to J. M. Grade one 50-inch class C elevator for 4-70 saw gins (except fan and telescope), also a pulley and some belting. It was alleged that Gracie purchased this property and agreed to pay the sum of $750 and the freight, amounting to $63.05. Plaintiff alleged that it retained title to the property until the purchase price should be paid, and that nothing had been paid on purchase price or freight, the plaintiff hav ing prepaid the freight. The plaintiff alleged demand for the property and $150 damages for wrongful detention of same, and prayed for the possession of the property, and damages.
An affidavit and bond were filed, and a writ of replevin issued. The New Gascony Investment Company filed a cross bond in the sum of $1,200, and retained possession of the property. Defendants (filed an answer, denying the material allegations of the plaintiff’s complaint, and stating that Clement had no interest in the litigation, but that the New Gascony Investment Company claimed to be the owner by purchase.
A jury was waived and the case was tried before the court sitting as a jury, and the court rendered judgment for the defendant. Plaintiff filed motion for new trial, which was overruled, exceptions saved, and plaintiff prosecutes this appeal to reverse the judgment of the circuit court.
The undisputed evidence showed that the Continental Gin Company, on the 16th day of July, 1925, sold and delivered to J. M. Gracie the property described, and that the sale was evidenced by a sales contract, wherein the title to said property was retained by the plaintiff until the full purchase price should be paid; that no part of the purchase price had been paid, and the freight had not been paid. The contract contained the following clause:
“It is understood that the title to said machinery shall remain in you and the same shall be your property until payment in full for same is. made,' and until all other sums herein agreed to be paid are paid, and if default is made in the payment of either of said notes when due, or in payment of any other sum herein agreed to be paid, then you, at your option, may enter upon the premises where said machinery is, take possession of and remove the same, without beine: liable to account for any sumí or sums, paid thereon, the sum or sums to be paid to be in payment for the use of said machinery. Said machinery shall not become or be considered a fixture to the real property whereon the same is situated.”
The undisputed proof also was that plaintiff demanded possession of machinery before suit, and that defendants retained possession of the property. The testimony showed a fair rental value to be $150 for the season.
The elevator purchased by Gracie is a complete outfit, but he did not purchase the fan or the telescope, which is a part of the elevator, and the elevator cannot run without the distributor being connected with the line shaft, or without a fan. The elevator is used to elevate cotton from the wagon to' the feeder, driving cotton to the feeder and feeding same to the gin.
The property sued for was not actually attached to the gin stands, but was placed directly over them, and held in position by joists resting upon the floor and nailed and screwed to the building housing the gin. The property sued for could be removed without physical damage to the gin stands and without material damage to the building.
J. M. Gracie, who purchased the machinery, had owned the land, but he had by warranty deed conveyed to his daughter, Sallie E. Gracie, on December 10, 1924, the land on which this gin was situated, for the consideration of $1. The land conveyed contained 960 acres, in Jefferson County, Arkansas. On December 13, 1924, three days after the land was conveyed to Sallie E. Gracie by her father, she executed a note and mortgage to secure the payment of $32,000. Then on June 3, 1925, Sallie E. Rose, who was before her marriage Sallie E. Gracie, executed a deed of trust to secure $5,000 indebtedness to W. C. Hudson and R. Carnahan. On January 6, 1926, Sallie. E. Gracie, by special warranty deed, conveyed to W. C. Hudson and R. Carnahan the said 960 acres for the consideration of $5,000 and the assumption by the purchasers of the $32,000 debt above mentioned. At the time Miss Gracie executed the deed of trust above mentioned, her father, J. M. Gracie, was managing the property. This was in January, 1925.
The testimony tended to show, that the gin could not be operated without the elevator, but that the elevator could be removed without material damage to the gin stands or the building. The testimony shows that the defendant purchased the property without any knowledge that said property was placed in the building by the plaintiff, and without knowledge that plaintiff retained title to property. After Hudson and Carnahan purchased the property, they conveyed the same to the New Gascony Investment Company, a corporation, whose stockholders are Carnahan, Hudson, Clement and McGeorge.
The court found the value of the property at the time of the trial was $600, and the usable Value for the season was $150. But the court held that the property sold by plaintiff to J. M. Gracie became a fixture, and passed with the conveyance of the realty.
The only question for our consideration is whether the appellee, the New Gascony Investment Company, is an innocent purchaser. As between the vendor of the property involved and the purchaser of said property it was not a fixture, and the vendor, having retained title, had the right, as against the original purchaser, to retake the property upon Gracie’s failure to pay the purchase price.
The term “fixture,” as generally understood, is property, originally a personal chattel, which has been affixed to the soil or to some structure legally a part of the soil, and which, being physically attached or affixed to the realty, has become a part of the realty. It is annexed to the freehold for use in connection therewith and so arranged that it cannot be removed without injury to the freehold.
It is sometimes said also that the intention of the party making the annexation is the chief test, and that in case of doubt the intention has a controlline: influ ence. But iu the instant case there is no dispute as to the character of the property as between the original vendor and original purchaser. They agreed that they should not be fixtures, but it is contended by the appellee that, while title was retained to the property until plaid for, it was sold to J. M. Gracie, who was a tenant, and it is urged that the court has decided many times that if a landlord was ignorant of such reservation of title and the machinery was. of such character that, when attached, it could not be removed without injury to the freehold, then it would become a fixture, and the vendor was not entitled to recover.
Attention is called to a number of decisions of this court which, it is claimed, support the contention of appellee.
The first case cited and relied on is the case of Peck-Hammond Co. v. Walnut Ridge School District, 93 Ark. 77, 123 S. W. 771.
The facts in that .case were that a school board entered into a contract with one J. S. Park for the construction of a schoolhouse. The plans and specifications, which were a part of the contract, provided for the installing of a heating plant. Peck-Hammond Company furnished the material and installed the heating apparatus under a contract with Park. The title to the material furnished was to remain in the vendor until paid for. The board paid out more than the contract price to erect the building, and knew nothing of the terms of the contract between Park and Peck-Hammond Company, and Park failed to pay, and the vendor brought suit in replevin to recover the property. The evidence was conflicting as to whether the material could be removed without defacing and otherwise injuring the building. The lower court dismissed the complaint, and plaintiff appealed. This court said the judgment was right, and that the cases cited by appellant are cases where the contract reserving title in the chattels was made with the owner of the land, and have no application to the facts of this case, and said further that the case of Peck-Hammond against the stockholders was ruled by the principle announced in Brannon v. Vaughan, 66 Ark. 87, 48 S. W. 909.
In the case in the 93 Arkansas the proof tended to show that the material could not be removed without defacing and injuring the building, hut also it was shown that the directors had no knowledge of the conditions of the contract for material furnished.
This court has held that a house built upon land and not attached to the land, except by its own weight, was not a fixture, under the agreement of the parties. If was held, however, that another room built onto the orig inal one, without any notice to the vendor until after-wards, was a fixture, since it was attached to the.main building, and could not be detached without great injury and damage to such building, evidently meaning that, if could be removed without injury, it would not be held a fixture. Brannon v. Vaughan, 66 Ark. 87, 48 S. W. 909.
Appellee next calls attention to the case of Thomas Cox & Son Machinery Company v. Blue Trap Rock Company, 159 Ark. 209, 251 S. W. 699. In that case the court held that the lower court had erred in declaring as a matter of law that the articles sued for were fixtures, and further held that, if title was reserved and appellant knew at the time Fulton intended to attach it to the realty of the company, and if appellant knew that the same was of a character that, when attached, would become a fixture, and could not be removed without injury to the freehold, and if the company was ignorant of the fact that the appellant had reserved title to machinery for which the notes in controversy were executed, then.the appellant would not be entitled to recover. But the appellee contends that the ease of Hachmeister v. Power Mfg. Co., 165 Ark. 469, 264 S. W. 976, is controlling in this case. The court said:
“It was wholly beyond the power of the makers of the deeds of trust or the mortgagees to pass title to or to place a mortgage lien upon chattels which they did not own at the time the deeds of trust were executed and the title to which they did not have at the time these chattels were attached to the freehold embraced in the mortgages.” And the court quoted with approval the following language:
“When a chattel is sold with "a reservation of title in the vendor until the price is paid, the title remains in him until the condition is performed, and á purchaser from the vendee acquires no title, though he buys in good faith for a valuable consideration and without notice of condition.”
The court then cites numerous Arkansas cases to the same effect.
Appellee next calls. attention to the annotation to the case of Lawton Press Brick & Tile Company v. Ross Heifman T. P. M. Co., in 49 L. R. A. (N. S.), at page 396. The court said in the case last above mentioned:
“We think there is evidence reasonably tending to show that the machinery did not become part of the buildings constructed to shelter it; the removal thereof would not take away or destroy that which is essential to the support of such buildings, foundations, walls, or other parts of the real estate to which it was attached; that it would not destroy or of necessity injure the machinery itself. So the limitation hereinbefore stated does not apply. Hence we conclude that the agreement between the vendor and brick .company, fully expressing their distinct purpose that the annexation of the machinery should not make it'part of the real estate, was sufficient to that effect, without any concurring intention on the part of the subsequent purchaser of the land.”
Most of the annotations or notes to which appellee calls attention are from cases where the facts show the property could not be removed without injury to the realty. It is also held in the cases referred to in the notes that a purchaser with notice of the rights of the seller of fixtures cannot retain the fixtures in a suit for same by the vendor.
The appellee calls attention to numerous other authorities, but it would serve no useful purpose to discuss those authorities or to review the cases to which attention has. been called by counsel.
The principles of law governing this .ease have been many times discussed by this court, and are well settled. And it has been repeatedly held by this court that, as between the vendor and purchaser of articles, the intention of the parties is the real test. Thompson v. Lewis, 120 Ark. 252, 179 S. W. 343; Bache v. Central Coke & Coal Company, 127 Ark. 397, 192 S. W. 225, Ann. Cas. 1918B, 198; National Bank of Wichita v. Spot Cash Coal Company, 98 Ark. 597, 136 S. W. 953.
But the chief thing relied on by appellee in this case is that it was an innocent purchaser, although, as between the original vendor and vendee of the property in controversy, the property remained a chattel, it purchased the property without notice, and that it was an innocent purchaser, and therefore as to it the property is a fixture, and cannot be removed by the plaintiff.
This court has said:
“This instruction excludes the idea that it was the duty of appellant, in order to bring himself within the doctrine of innocent purchaser, to make inquiry concerning the ownership of fixtures of this character, even though substantially fastened into the soil. It is true appellant testified that he inquired from his vendor concerning the ownership of the fixtures, and was informed that they were a part of the real estate. He was an interested party, and facts established by his testimony alone cannot be said to be established by the undisputed evidence.” Salmon v. Boyer, 139 Ark. 236, 213 S. W. 383.
In the instant case appellee does not seem to have made inquiry of iany one. It is a matter of common knowledge that property of the character of that involved in this suit is purchased in this country on time, and that contracts for this kind of property are constantly made wherein the title is retained until paid for. And in purchasing property under the circumstances existing in this case it was the duty of the appellee to make inquiry and. ascertain whether this property belonged to the vendor of the real estate.
Hudson and Carnahan knew that the owners were indebted, and that the property was mortgaged for $32,000.
J. M. Gracie, on December 10, 1924, conveyed the property to his daughter, Sallie E. Gracie, for the consideration of $1. Then on December 13, 1924, three days later, Sallie E. Gracie mortgaged the property to secure payment for $32,000. On June 3, 1925, Hudson and Carnahan loaned Sallie E. Rose, formerly Sallie E. Gracie, $5,000, and of course they knew of the $32,000 indebtedness. After they had loaned the $5,000 on July 16, 1925, the appellant sold the property involved in this suit to J. M. Gracie. It is true that they testify that when they purchased the property they took into consideration this property and its value, but when they loaned the $5,000 this property had not yet been purchased. They loaned the $5,000 before this property was. installed there, when they knew that there was indebtedness against it for $32,000, and when they finally purchased the place they gave $5,000 and assumed the payment of the $32,000 debt. The knowledge that the parties must have had of all these facts required them to at least inquire of the parties who sold this property before they could bring themselves within the doctrine of innocent purchaser.
From the evidence in this case we have reached the conclusion that the property was not a fixture, and that the appellee was not an innocent purchaser. The case is therefore reversed, and remanded with directions to enter judgment for the Continental Gin Company for the property or its value, which the court found to be $600, and for the damages for the wrongful detention of said property. The damages for detention would be the usable value of the property. It is so ordered. | [
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Humphreys, J.
This is a suit in ejectment brought by appellant against appellee, in the circuit court of Crawford County, to recover possession of the following described real estate in Crawford County, Arkansas, to-wit: One lot 60 ft. x 120 ft. in the town of Schaberg, Arkansas, beginning at the southwest corner of the northwest quarter of southeast quarter section 10, township 12 north, range 30 west; thence north 235 2/3 feet to place of beginning; thence 60 feet east; thence 120 feet south, then 60 feet west; thence 120 feet north, to place of beginning. Also one lot 40 feet east and wvest and 60 feet north and south on the. northwest quarter of the southeast quarter of isection 10, township 12 north, range 30 west, in the town of Schaberg, covering the location of the J. M. Moore store building, except that it extends 10 feet further south than said store buildings, as evidenced by iron stakes and foundation ditches as they stand when this deed is made.
Appellant alleged that it acquired title to the land under a' decree of the Federal court of the Western District of Arkansals on October 3,1896, in a suit between it and M. M. Saylor, who homesteaded the land on January 27, 1890, and that appellee had taken possession thereof and refused to relinquish same upon demand.
Appellee filed an answer, denying appellant’s ownership of the lands, alleging ownership thereof in himself, through mesne conveyances from M. M. Saylor, the patentee;- alteo that he hiad acquired title thereto by adverse possession thereof for more than seven years.
The cause was submitted upon the pleadings, testimony introduced by the respective parties, and instructions of the court, resulting in a verdict in favor of appellee and a consequent judgment dismissing appellant's complaint, from which is this appeal.
The lots in controversy are part of appellant’s right-of-way, title to which was quieted in appellant by the United States Circuit Court at Fort Smith, Arkansas, in 1896, in a suit wherein appellant was plaintiff and M. M. Saylor was defendant. Appellant introduced this decree and based its right to recover thereon.
Appellee introduced, over appellant’s objection and exception, mesne conveyance® from M. M. Saylor and his heirs, claiming that said deeds described the .lots in controversy. Appellant objected to the introduction of the several deeds upon the ground that none of them sufficiently described the lands in question, or else are so indefinite and uncertain that they described no lots at all. We deem it unnecesisiary to set out these descriptions in this opinion, as to do so could serve no useful purpose. We think the court should have excluded the deeds for insufficiency in description, and should have sent the case to the jury upon the sole question of pedal possession. The issue of pedal possession for seven years was submitted to the jury, but upon instructions which did not carry the idea that such possession must haA^e been continuous to entitle appellee to acquire title by adA^erse possession — continuous in the sense that appellee had not, at any time, abandoned the possession of the particular land actually occupied by him. In other words, the instructions given declaring the laiv of pedal possession should have contained the Avord “continuous.” The issue of pedal possession Avas beclouded by the instruction given relative to appellee’s acquisition of title by deed. This issue should not havu been submitted to the jury, and may have misled them in reaching a verdict. There avrs no competent evidence upon Avhich to base the instruction relative to the acquisition of the lands by deed. The'deeds introduced by appellee did not sufficiently describe the lots in controversy, and should have been excluded.
On account of the error indicated the judgment is reversed, and the cause is remanded for a new trial. | [
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Hart, C. J.
We think the decision of the chancellor was wrong*. He evidently proceeded upon the theory that the instrument copied in our statement of facts did not amount to an assignment of a right of action on the policy. This court has held that the right of action on an insurance policy is assignable under orir statute, and that a clause in the policy against assignment without consent of the company applies only to assignments during the lifetime of the policy, and not to an assignment of liability which has already accrued under the policy. McBride v. Ætna Life Insurance Co., 126 Ark. 528, 191 S. W. 5, and Garetson-Greason Limber Co. v. Home Life & Accident Co., 131 Ark. 525, 199 S. W. 547. To the same effect see Mosaic Templars of America v. Mearon, 153 Ark. 568, 241 S. W. 35, 27 A. L. R. 1147, where it was held that, unless a contract of insurance contains a restriction concerning assignments, an insurance policy may ordinarily be assigned in any form recognized by law, even by oral assignment.
After the property insured was destroyed by fire, the assignment of the interest of the insured copied in our statement of facts was made. This was done before the garnishment of the company in favor of the appellee. The instrument purports to assign the interest of Charles Jones as owner of the property covered by the policy, subject to the consent of the insurance company. When we consider that this was done after the property had been destroyed, it is reasonable to construe the instrument as an assignment by the insured of his right of action against the insurance company, and we are of the opinion that the chancery court erred in not SO' holding.
The decree will therefore be reversed, and the cause will be remanded with directions to the chancery court to enter a decree in favor of the appellant. | [
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Humphreys, J.
Appellant was indicted in the circuit court of Ashley County for the crime of murder in the first degree for shooting and 'killing Bill Jones, on May 23, 1927, who was passing his premises in an automobile, in company with Boy Bobbins, Lee Bobbins and Bank Norrell. Bill Crow Sharp, son of appellant, and Buss Jordan were with appellant when the killing occurred, and all three were indicted fur the crime. Appellant interposed the plea of self-defense to the charge, and, on the trial of the cause, was convicted of involuntary manslaughter, and, as a punishment therefor, was adjudged to serve a term of one year in the State Penitentiary, from which is this -appeal.
Appellant has assigned as reversible error the action of the trial court in temporarily excusing Jim Wilcoxson, a regular grand, juror, from the grand jury, when appellant’s case was before said grand jury for investigation and consideration, and in summoning another to serve in his place. Jim Wilcoxson was excused on the motion of employed attorney for the State because he was a witness for appellant. Section 6366 of Crawford & Moses’ Digest provides that the trial court may excuse for good cause any who are not competent jurymen. Certainly a witness for one whose case is being investigated by the grand jury is not a competent juror. The court did not commit reversible error in substituting another to serve in the place of Wilcoxson.
Appellant also assigns as reversible error the refusal of the court to quash the indictment at his request on the alleged g’round that it was returned through coercion, and not voluntarily. This motion was made on the day the case was set for trial, and the members of the grand jury had not been subpoenaed to testify in support of the motion, and were not present so that they might be called without delaying the trial oif the cause. The court refused to delay the trial in order that the grand jurors might be subpoenaed to appear and testify relative to the charge of coercion. As no diligence was shown to have the jurymen present, the court was warranted in treating the motion as dilatory.
Appellant also assigns as reversible error the refusal of the court to allow D. A. Pearson, a justice of the peace, to tell how appellant said the shooting occurred, in contradiction of the testimony of J. C. Riley, the sheriff, who testified that, when he reached the scene of the tragedy, he asked .appellant if J ones and those with him were trying to kill him when he shot at them, and he said “No”; that he then asked him if they had their guns raised to .shoot at the time he shot a.t them, and he said, “No,” that, Gf...... damn them, he did not give them a chance; that he then asked him if he would shoot la man Who was not trying to kill him, and he said, well, he figured that he had to kill them, and that this was the best chance he would ever have.
Appellant offered to prove by D. A. Pearson that he would say, if allowed to answer, that appellant said that, before he fired at Norrell and Jones, Norrell had raised his gun to fire, and that Jones was trying to get his gun up, but was having trouble getting it around because' the barrel hit the top' of the car; and that appellant did not say that they did not give him a chance, and that he thought that he would have to kill them some time, and that this would be about the best chance he would ever get.
The court excluded the testimony of Pearson because he would not state thiat.J. C. Eiley was present when he heard appellant make the statement. 'Three other witnesses testified that Pearson was present when appellant told Eiley how the shooting occurred. One was Jordan, jointly indicted with appellant. Another was Pugh, who was sick, and testified by deposition. The third was Peek Watson. None of these were officers. All three contradicted the sheriff1 relative to the statement he said appellant made to him as to how the killing occurred. It was error to exclude Pearson’s testimony, either upon the ground that Pearson could not remember whether Eiley was present when appellant made the statement, or because it was cumulative. Other witnesses testified that Eiley was present,, and that appellant was addressing himsellf to Eiley when he made the statement. If Pearson had been permitted to testify, he would have been the fourth to testify on that point, but we do not regard the testimony as merely cumulative. Pearson was an officer who had lived for sixteen years in the community, and, on account of his standing, muela weight might have beeai accorded his statemeait. Toaaching upon this point, it was suggested by the coaart, in the case of Sheppard v. State, 120 Ark. 160, 179 S. W. 168, that the testimony of a witness whose standiaag would have carried more weight than that of others should be admitted.
Although, error to exclude Pearson’s testimony, appellant suffered no prejudice on account of the exclusion thereof, for the reason that, according to his own statement, he voluntarily entered into the shooting affray, and therefore he cannot avail himself of the claim that he shot Jones in necessary self-defense. Appellant testified that, after hearing that Jones, and Norrell had threatened to kill him, and after being informed that they passed his premises with their guns, en route to a small village the other side of their home, he armed himself and took his station at the little tenement house 'on his premises near the road by which the deceased would return, for the purpose of defending himself in case he was attacked. It was unnecessary for his protection that' he go down by the roadside, armed, where deceased would probably pass on his return. He could easily have avoided the difficulty by remaining at his own residence, which was, in the eye of the law, his castle. It would not have been a cowardly act to do so. He could have defended himself there as well, if not better, than on the roadside, had they attempted to take his life.
Appellant also assigns as reversible error certain remarks made by the court in instructing the jury that indicted him, which remarks were made in the presence and hearing of N. T. Watson, Eugene Bunn, and J. R. Hester, who were members of the petit jury who tried him. It is unnecessary to set out that portion .of the charge of the court now objected to. The objection was not made when the petit jurors were examined touching their qualifications. That was the time for appellant to have spoken, and, not having done so, he estopped himself from afterwards making the objection.
Appellant also' assigns as reversible error the admission of certain testimony of Peck Watson, on the ground that appellant’s reputation had not been put in issue. The interrogatory and answer are as follows:
“Q. You know, too, that the man who accused Bill Jones and Bank Norrell of the killing of Sam Meeks made an affidavit that this defendant, T. J. Sharp, employed him to make that statement and swear that these two paid him to kill Sam Meeks, and that he would keep him out of jail if he would swear that?.A. I heard it, but did not believe it. ”
This interrogatory was propounded and answered on cross-examination of Peck Watson, who had testified that the reputations of Bank Norrell and Bill Jones were bad, when he was being questioned as to certain other specific acts when this testimony was developed, and it was admitted for the purpose of testing the credibility of the witness and not for the purpose of attacking the character of appellant.
Appellant also assigns as reversible error the action of the court in modifying his requested instruction Gr, by striking out the word “home” and inserting the word “premises.” The court’s action was correct. The undisputed proof showed that appellant was at a tenement house on his premises and not at his own home when the shooting occurred. The amendment had the effect of conforming the instruction to the undisputed proof.
Appellant next assigns as reversible error the insufficiency of the evidence to sustain the verdict. According to the evidence of the State’s witnesses, appellant was guilty of murder in the first degree. They testify, in substance, that appellant opened fire upon Bill Jones and his companions, who were passing a tenement house on appellant’s premises in an automobile, and continued to shoot at them until he . had killed Bill Jones, and wounded,two others. Their testimony was to the effect that no attempt was made by Bill Jones and his companions to assault appellant before he began to shoot at them. Appellant admitted receiving information that they had threatened to kill him and had gone by his house on the way to a small village with guns in their car, and that he armed himself and took a station near the roadside at one of his tenement houses. It is true that he testified that he did not open fire until they had leveled their guns at him, but his action in arming, himself and going to a place where they would necessarily pass upon their return amounted to voluntarily entering .into the conflict, and precluded him from pleading self-defense to the charge.
Learned counsel argue that the testimony showed that he was either guilty of murder in the first degree or nothing. This court has often ruled that one cannot complain of being convicted of a lower degree of homicide than the evidence warrants. Price v. State, 82 Ark. 25, 100 S. W. 74; Wilkerson v. State, 105 Ark. 367, 151 S. W. 518; Freeman v. State, 150 Ark. 387, 234 S. W. 267; Parker v. State, 169 Ark. 421, 275 S. W. 758.
The judgment is affirmed.
Justices Mehaeey and MoHaney dissent. | [
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Smith, J.
The facts out of which the present litigation arises are very similar to those set out in the opinions in the cases of Davis & Worrell v. General Motors Acceptance Corporation, 153 Ark. 626, 241 S. W. 44; Commercial Credit Company v. Blanks Motor Company, 174 Ark. 274, 294 S. W. 999; and Standard Motors Finance Company v. Mitchell Auto Company, 173 Ark. 875, 293 S. W. 1026. The appellee in the first case mentioned and appellants in the others were foreign corporations engaged in the business of buying notes executed in this State, but payable in other States, given in partial payment of second-hand automobiles and motor trucks, the method of procedure of the corporations being practically the same in all cases.
The facts in the instant case may be summarized as follows: The Mott Motor Company, a motor car dealer at Elaine, Arkansas, on October 8,1924, sold to Mrs. M. E. Van Lake a Ford touring car for the jjrice, including “service charges,” of $525.24, of which $131.54 was paid in cash and the balance was evidenced by the note of the purchaser of even date with the contract of sale, for the sum of $394, payable to the Equitable Credit Company, hereinafter referred to as the company, at its office in New Orleans, Louisiana. The meaning of this service charge was shown in the opinion in the case of Standard Motors Finance Company v. Mitchell Auto Company, supra. The company was not interested in the business of the Mott Motor Company further than that it had an arrangement with that company whereby it bought certain notes from the Mott Motor Company which that company had taken from purchasers of cars, blanks being furnished to Mott Motor Company by the New Orleans Company for that purpose.
The purchasers of the cars were required to make a financial report on the blanks furnished by the New Orleans company to the Mott Motor Company, and these statements and contracts of sale, with the purchase money notes forming a part of them, were submitted to the New Orleans company, at its office in that city, for approval, and the company bought in New Orleans such of these notes as it pleased.
The note and contract of Mrs. Van Lake were forwarded by the Mott Motor Company to the office of the New Orleans company, where the purchase of the note and contract was completed by the remittance to the Mott Motor Company of the agreed price.
Mrs. Van Lake assigned her 'contract of purchase to Dr. J. R. Rogers, the written consent of the New Orleans company having first been obtained. Rogers made default in the payments of the installments of the purchase money note, which were to be made at the rate of $32.84 monthly, according to the allegations of the complaint which was filed by the company in the replevin suit brought to recover possession of the ear.
Rogers defended on the ground, among others, that the facts out of which the transaction arose, and which will be stated in. further detail, constituted the doing of business by the foreign corporation, which admitted that it had not complied with the laws of this State authoriz ing it to do business in this State. The cause was submitted to the jury upon this question only, and from the verdict and judgment in favor of the defendant Rogers is this appeal.
Exceptions were saved to the modification of certain instructions requested by the plaintiff company, which we do not discuss, for the reason that, in our opinion, the undisputed facts show that the appellant company was not doing business in this State, and that question should not have been submitted to the jury.
It was shown, upon the cross-examination of the managing officer of the company, that it maintained no office in this State, but that its representative entered this State from time to time to make collections of notes purchased, as the note of Mrs. Van Lake had been, and this representative “repossessed cars, moved cars that were repossessed, arranged for the sale and repair of cars surrendered by purchasers, or repossessed through legal procedure or otherwise.”
Upon the authority of the case of Davis & Worrell v. General Motors Acceptance Corporation, supra, we hold that the facts recited do not constitute doing business in this State.
The facts of that case were that Davis & Worrell purchased from the Newport Foundry Company, at Neivport, Arkansas, two motor trucks, and, after making a cash payment, executed their negotiable promissory note for the balance of the purchase money, the title being retained by the seller until the purchase money note ivas paid. The note was purchased by the foreign corporation for value, before maturity, at its office in Dallas, Texas. The corporation had no agency in this State, but bought commercial paper from about forty concerns selling motor vehicles in this State. It required the dealers from Avhom it bought notes to make financial statements, and the amount of credit extended to the dealer depended upon these statements. Blank forms of contract AA’ere furnished by the foreign corporation to the dealer from whom it contemplated the purchase of notes, the statement being made on the back of each contract. The corporation made an investigation of the maker and indorsers of the paper submitted to it, through various commercial agencies, and then bought such of the paper as it pleased, the contracts of purchase being concluded at its office in Dallas. It was there said: “It is true that the furnishing of blank contracts to be used by the dealers in selling their motor vehicles and in purchasing the notes given for said motor vehicles tended to further the business of such dealers, but this did not make such transactions fall within the terms of the act. This would not be the controlling test. The test is, was the transaction of the business such that the corporation was, for the time being,'through its agents or otherwise, within the State for the purpose of doing business?”
’ It thus appears thiat facts substantially the same as those existing in the instant case were held not to constitute doing business in the case quoted from. This being true, the subsequent conduct of the corporation in attempting to collect the note was a mere incident to the original transaction, which did not constitute doing business in this State.
At § 3982 of the chapter on Corporations, 14A, C. J., it was said:
“Incidental transactions. The courts are in agreement that transactions in a State by a foreign corporation of acts of business, whether commercial or otherwise, which are merely incidental to the business in which such corporation is ordinarily engaged, does not constitute the doing or carrying on of business within the meaning of statutes imposing conditions, restrictions, regulations; etc.,' on the right of foreign corporations to do business.”"
At § 3984 of the same chapter, 14A, C. J., page 1278, • it was also said:
“Collection of debts, etc. The collection in a State by a foreign corporation of debts due it for goods sold or Otherwise' contracted does not constitute doing, transacting, carrying oil or engaging in business within the meaning of the statutes under consideration; nor does the acceptance in a State of evidence of such debts, or the taking of security therefor, come within the meaning of such statutes. The same is true of the action of a corporation in a State in adjusting or compromising such debts.”
Several Arkansas cases are cited in the notes to each of these sections which sustain the text quoted.
The opinion delivered this date in the case of the Linograph Co. v. Logan, ante p. 194, may be consulted for a further discussion of this feature of the case.
It follows therefore that the court was in error in submitting io the jury the question whether the plaintiff company was engaged in doing business in this State, and for this reason the judgment will be reversed, and the cause remanded for a new trial. | [
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Humphreys, J.
Appellant was indicted, tried and convicted in the circuit court of Sebastian County, Greenwood District, for'manufacturing intoxicating liquor, and, as a punishment therefor, was adjudged to serve a term of one year in the State Penitentiary.
The testimony introduced by the State showed that appellant’s home, in said district and county, was searched by the sheriff of the county and one of his deputies, under authority of a search warrant, and that, although appellant denied having chock beer in the house, they discovered, under a loose plank of the floor in one of the rooms,'a sixteen-gallon keg, partially buried, which contained a quantity of chock beer, and five full jars and a dozen or more jars partly full of the stuff. There was a dipper and a strainer in the keg with which to dip the beer off. Appellant admitted, after the discovery of the chock beer, that he made it out of certain ingredients in the house, and an analysis of the beer by the chemist disclosed that the beer contained six per cent alcohol by volume. Appellant and his little daughter, twelve years of age, resided in their home. A man by the name of Disbaugh stayed around the house a part of the time, but disappeared a few days before the search was made.
The first ground in appellant’s motion for a new trial is that the court permitted'the prosecuting attorney to state, in his closing argument, that the fact that the beer was found in appellant’s house showed that he either manufactured it or was interested in the manufacture thereof. We think this a legitimate inference from the testimony, which the prosecuting attorney had a right to draw and argue. It is perfectly proper for a prosecuting attorney to draw legitimate inferences from the testimony and urge them as reasons for a conviction.
The second ground in appellant’s motion for a new trial is that the trial court permitted the prosecuting attorney to state that it would be better-for his little girl if he were convicted, for it would take her out of the influence of and away from the immorality in which she was participating. This argument was made by the prosecuting attorney in his closing -speech, in response to an argument made by appellant’s attorney to the effect that he should not be convicted, for he would be taken away from his little girl. If it was error for the prosecuting attorney" to make this argument, it was invited by appellant’s own attorneys, and he cannot complain. Davis v. State, 150 Ark. 500, 234 S. W. 482; Seaton v. State, 151 Ark. 240, 235 S. W. 794.
The third, fourth and fifth grounds for appellant’s motion for a new trial are that the verdict is contrary to the law and the evidence. The testimony' is legally sufficient to support the verdict, and the law applicable to the facts was correctly declared byr the court."
No error appearing, the judgment is affirmed. | [
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McHaney, J.
Appellee, Billie Smith, who says she is a resident of Malvern, Arkansas, was arrested on the night of June 13, 1942, in her room at a hotel in the city of Little Rock, and charged with a violation of §§ 1 and 2 of ordinance No. 6249, prohibiting immorality and prostitution and § 3 fixing the punishment therefor. Through her attorney, she pleaded guilty to the charge and paid a fine of $10. Section 4 of said ordinance, as amended by § 3 of ordinance No. 6434, provides that if any person is convicted of a violation of said offense, “such fact shall be reported by the clerk of the municipal court to the city health officer; and on such conviction, the municipal judge or the city health officer is authorized to cause such person to be detained and examined by the city health officer or by a physician designated by the city health officer by use of the necessary tests and examinations, including the Wassermann blood test, to ascertain the presence of any venereal disease in a communicable stage, provided that any evidence so acquired shall not be used against such person in any criminal prosecution.” Section 5 of said ordinance provides: “Whenever any person, after the examination provided in section four of this ordinance, is found to be infected with a venereal disease in a communicable stage, the city health officer may, pending the imposition of or at the expiration of any jail sentence imposed on. such person, when in the exercise of his discretion he believes that the public health requires it, commit such person found to be infected with a venereal disease in a communicable stage who fails to take treatment adequate for the protection of the public health, to a hospital or other place designated by the city health officer as a place of quarantine in the state of Arkansas for such treatment, even over the objection of such person so diseased or infected, provided the commitment can be done without endangering the life of the patient. ’ ’
After her conviction appellee was detained and examined by the city health officer, and was found to be infected with a venereal disease, gonorrhea, in a communicable stage, and a Wassermann blood test for syphilis showed positive. She was thereupon ordered quarantined in the public health center, maintained by the United States Government in the city of Hot Springs, Arkansas, by the city health officer.
On June 16, 1942, appellee filed her petition for a writ of habeas corpus directed to the appellant, Gus Caple, sheriff of Pulaski county, in which she stated that she was unlawfully confined in the Pulaski county jail under • said ordinance No. 6249 which was alleged to be void, and that she had been informed that she would be transferred to “a concentration camp” against her will.
The sheriff filed an answer to the petition for habeas corpus, setting up the matters aforesaid and many others as his authority for detaining appellee and attaching certified copies of ordinance No. 6249 and its amendatory ordinance No. 6434; also ordinance No. 6248 and its amendatory ordinance No. 6282, and asserting the validity of said ordinances as being a reasonable exercise of the police power of the city for the protection of the public peace, health and safety, and that no right of appellee is being violated in or by them. He further alleged that he held appellee under and subject to the orders of Dr. L. L. Fatherree, city health officer, who should be made a party respondent to the petition. Dr. Fatherree was made a party and adopted, as his response, that of sheriff . Caple.
Trial resxdted in a holding, by the learned trial judge, that ordinances Nos. 6248 and 6249, as amended, are unconstitutional and void, ihe writ was granted and appellee was discharged upon her petition, but was ordered held subject to the action of the prosecuting attorney’s office on a charge of prostitution, and was remanded to jail pending further orders of the court. The city, the sheriff and the city health officer have appealed, and the city attorney has filed an able brief in their behalf. Appellee has not favored us with a brief in her behalf.
The question presented is whether the ordinances of the city of Little Bock, above mentioned and parts of which are quoted, are valid as being within the police power of the city. If they are valid, then the action taken is not in excess of the authority conferred. There can be no doubt of the city’s power to declare prostitution or immorality a criminal offense and to punish for a violation. Indeed appellee was so convicted and paid a fine therefor. This is not a. criminal proceeding, but is one in the interest not only of appellee, but of the public. It is a proceeding to compel her to be quarantined, segregated from the public, to the end that she may be cured of the venereal diseases with which she is infected, and that she may not communicate them to others. When a cure is effected', the authority to detain her is at an end.
In Williams v. State, 85 Ark. 464, 108 S. W. 838, 26 L. R. A., N. S. 482, 122 Am. St. Rep. 47, it was said: “It is the duty of courts, in testing the validity of a given regulation, to resolve all doubts in favor of the legislative action, and to sustain it unless it appear to be clearly outside the scope of reasonable and legitimate regulation.” In 16 C. J. S., § 183, it is said: “Health being a sine qua non, of all personal'enjoyment, it is not only the right bnt the duty of the state possessing the police power to pass such laws as may be necessary for, the preservation of the public health.” In Beaty v. Humphrey, 195 Ark. 1008, 115 S. W. 2d 559, we said: “The police power of the state is one founded in public necessity and this necessity must exist in order to justify its exercise. It is always justified when it can be said to be in the interest of the public health, public safety, public comfort, and when it is, private rights must yield to their security, under reasonable laws.” Can there be any doubt that the legislature might enact valid legislation similar to the ordinances here in question? We think not. If it could, then it can and has delegated this power to municipalities. Section 9543 of Pope’s Digest makes it their duty to publish certain ordinances and by-laws and power is conferred to “make and publish such by-laws and ordinances — to provide for the safety, preserve the health, promote the prosperity and improve the morals, order, comfort and convenience of such (municipal) corporation and the inhabitants thereof.” Section 9589 provides: “They shall have power to prevent injury or ■annoyance, within the limits of the corporation, from anything dangerous, offensive or unhealthy . . .” So, the state’s power to legislate in the protection of the public health has been granted and delegated to municipalities, and its exercise by the city in the ordinances here presented must be held to be within the grant, unless it can be said that the power conferred on the city health officer is unreasonable. Applying the rule above stated in the Williams case, we cannot say that the power conferred is “clearly outside the scope of reasonable and legitimate regulation.”
The venereal diseases with which appellee is afflicted have become so widespread and so devastating in their effects upon communities where prevalent as to become a public menace. Many cities are now fighting more or less successfully to overcome this menace and to prevent degeneration into a race of cripples, paranoiacs and insane. Camp Joseph T. Robinson, with its 25,000 young men soldiers; Maumelle Ordnance Works and Arkansas Ordnance Plant, each with thousands of workers, men and women, are near the city of Little Rock, and these men and women, as well as our own citizens in the city, are entitled to protection against these dreadful and loathsome diseases. Here the necessity exists which justifies the exercise of the power, and the private rights of appellee, if any, must yield in the interest of the public security.
Section 9679, Pope’s Digest, provides: “The city council shall have the power to establish a board of health, with jurisdiction for one mile beyond the city limits; and for quarantine purposes, in cases of epidemic, five miles; to invest it with such powers and impose upon it such duties as shall be necessary to secure the city and the inhabitants thereof from the evils of contagious and malignant and infectious disease; to provide for its proper organization and the election or appointment of necessary officers, and' to make such by-laws, rules and regulations for its government and support as shall be required for enforcing the prompt and efficient performance of its duties and the lawful exercise of its powers.”
The trial court thought this statute denied the right of the city health officer to quarantine appellee outside the city or county beyond the limits stated, in case of epidemics, five miles. We think the statute means that the jurisdiction of the board of health shall extend for one mile beyond the city limits, or five miles for quarantine purposes, in cases of epidemics. It has no reference to the place a person may be confined for quarantine purposes, but only to the extent of the jurisdiction beyond the city limits for the better protection of the inhabitants of the city. Section 6438 of Pope’s Digest expressly authorizes and requires the city health officer to perform the duties “prescribed for him under the directions, rules, regulations and requirements of the State Board of Health.” One of these regulations of the State Board of Health is No. 3, as follows: “Isolation of infectious cases until rendered non-inf ectious. Any health authority may, when in the exercise of his discretion he believes that the public health requires it, commit any commercial prostitute or other person apprehended and examined and found afflicted with said'diseases or either of them who refuses or fails to take treatment adequate for the protection of the public health, to a hospital or other place in the state of Arkansas for such treatment even over the objection of the person so diseased and treated, provided the commitment can be done without endangering the life of the patient.”
These rules have been upheld by this court in Allen v. Ingalls, 182 Ark. 991, 33 S. W. 2d 1099, and State v. Martin & Lipe, 134 Ark. 420, 204 S. W. 622. In the latter case we held this court would take judicial notice of the rules, orders and regulations of the State Board, and that it was authorized to make and promulgate rules and regulations for the prevention of infectious, contagious and communicable diseases, which was not a delegation of legislative power. Now, the above, rulé is authority to the city health officer to commit appellee ouside the city of Little Rock and to confine her at the government health center in Hot Springs. See, also, §§ 1, 2, 3 and 4 of the Rules and Regulations of the State Board of Health under the heading “Genito — Infectious Diseases (Syphilis, Gonorrhea and Chancroid). ”
A number of cases of courts of other states sustaining similar legislation or ordinances are cited, one of which Ex Parte McGehee, et al., 105 Kans. 574, 185 Pac. 17, 8 A. L. R. 831, is quite similar to the case before us. There, as here, the State Board of Health, under statutory authority, had adopted rules and regulations for the isolation and quarantine of persons exposed or afflicted with infectious disease, and these regulations authorized the city health officer to investigate such suspected cases and to isolate persons found to be so infected. A place of quarantine for men was provided at Lansing, Kansas. The city of Topeka passed an ordinance conforming to the state regulation, and under it the city health officer was authorized to quarantine persons infected with' venereal diseases outside the city of Topea. McGehee was found to be infected with gonorrhea and was ordered quarantined at Lansing by the city health officer, and he sought release by habeas corpits. The language of the Supreme Court of Kansas, in denying the writ, is so applicable here that we quote the following with approval: “The rules of the State Board of Health and the city ordinance are assailed as unreasonable. In this instance only those provisions of the rules of the State Board of Health and of the city ordinance are involved which relate to isolation of persons who have been examined and have been found to be diseased. Reasonableness of provisions relating to discovery and to examination of suspects need not be determined. It may be observed, however, that while provisions of the latter class cut deeply into private personal right, the subject is one respecting which a mincing policy is not to be tolerated. It affects the public health so intimately and so insidiously that consideration of delicacy and privacy may not be permitted to thwart measures necessary to avert the public peril. Only those invasions of personal privacy are unlawful which are unreasonable, and reasonableness is always relative to gravity of the occasion. Opportunity for abuse of power is no greater than in other fields of governmental activity, and misconduct in the execution of official authority is not to be presumed.
“It is urged that the regulations in question are unreasonable, in that they authorize isolation in remote places beyond the limits of the city in which the petitioners reside. The court knows of no law, or rule of public policy or private right, which requires a person who, for the protection of the public must- be isolated and treated for loathsome communicable disease, to be interned in the locality in which he may reside. It would have been competent for the State Board of Health to designate a single hospital for the detention of all persons in the state found to be so diseased, and it is entirely reasonable for cities having inadequate facilities, or having no facilities of their own, to take advantage of those provided bjr state authority. In this instance the city health officer’s power to isolate is restrained by ordinance which requires the city commission to approve detention hospitals other than those provided by the city.
“In the application for the writ it is stated that the petitioner is not diseased. The question is one of fact, determinable by practically infallible scientific methods. The city health officer was authorized to ascertain the fact. He has certified to the existence of disease, and, in the absence of a charge of bad faith, or conduct equivalent to bad faith, on his part, his finding is conclusive.
“In the application for the writ it is stated that, if the petitioners be diseased, they are able to provide themselves with proper treatment in an isolated place in 'the city of Topeka. The answer is: The public health a/uthorities are not obliged to take chances.”
We, therefore, conclude that the court erred in holding said ordinances unconstitutional and void and in discharging appellee'. The judgment is reversed and the cause remanded with directions to dismiss the petition for the writ of habeas corpus and to remand appellee into the custody of the sheriff for isolation and quarantine as ordered by the city health officer, and an immediate mandate shall issue. | [
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J. Fred Jones, Justice.
Appellant, Patricia Poole, was charged in Little Rock Municipal Court with the offense of failure to vacate under Ark. Stat. Ann. § 50-523 (1947). After her plea of not guilty was entered, appellant was tried and found guilty in municipal court and was assessed a fine of $15.00 and costs of $10.50. Upon appeal to the Pulaski County Circuit Court, appellant’s motion to dismiss was denied and the judgment of the Little Rock Municipal Court was affirmed. On appeal to this court, appellant relies on the following point for reversal:
“Appellant’s conviction should he reversed and Ark. Stat. Ann. 50-523 declared to he unconstitutional since it constitutes an invalid and unreason able exercise of the police power of the state of Arkansas in that the subject matter thereof is outside the scope of the public health, safety and general welfare and interest, and consequently the enforcement of Ark. Stat. Ann. 50-523 deprives appellant of rights secured to her by the due process clause of the Fourteenth Amendment to the United States Constitution.”
The facts are stipulated and not in dispute. On April 14, 1967, appellant entered into an oral agreement with Mr. Frank Seymour to rent an apartment located at 4408 West 28 Street in Little Rock on a weekly basis at the rate of $22.00 per week. On June 23, 1967, at which time appellant was one week and six days behind in her rent, she was served with a ten day notice to vacate the apartment for nonpayment of rent. On July 20, 1967, some 28 days after service of the notice to vacate, appellant had still not moved and was charged under Ark. Stat. Ann. § 50-523 (1947), which is as follows :
“Any person who shall rent any dwelling house, or other building or any land, situated in the State of Arkansas, and who shall refuse or fail to pay the rent therefor, when due, according to contract, shall at once forfeit all right to longer occupy said dwelling house or other building or land. And if, after ten [10] days notice in writing shall have been given by the landlord, his agent or attorney, to said tenant, to vacate said dwelling house or other building or land, said tenant shall wilfully refuse to vacate and surrender the possession of said premises to said landlord, his agent or attorney, said tenant shall be guilty of a misdemeanor and upon conviction thereof before any justice of the peace, or other court of competent jurisdiction, in the County where said premises are situated, shall be fined in any sum not less than one dollar [$1.00], nor more than twenty-five dollars [$25.00] for each of fense, and each day said tenant shall wilfully and unnecessarily hold said dwelling house or other building or land after the expiration of notice to vacate, shall constitute a separate offense.”
We cannot agree with appellant that § 50-523, supra, is unconstitutional. Its provisions have been the law in this state since 1901 and its constitutionality has never been judicially questioned. The courts may not review the wisdom, discretion, or expediency of the legislature in the exercise of the powers it possesses, Berry v. Gordon, 237 Ark. 547, 376 S. W. 2d 279; Dabbs v. State, 39 Ark. 353, and a statute will not be struck down by the courts unless it is obviously unconstitutional. All reasonable doubt must be resolved in favor of such constitutionality, there being a presumption in favor of validity. Berry v. Gordon, supra; McEachin v. Martin, 193 Ark. 787, 102 S. W. 2d 864. Furthermore, a statute effective over a long period of time, with its validity being unquestioned by bench or bar, although not conclusive, is highly persuasive of the validity of such statute. McEachin v. Martin, supra; 16 C. J. S., Constitutional Law § 99, p. 443.
It seems clear to us that § 50-523, supra, was enacted as a valid exercise of the police power of this state. The right of an individual to acquire and possess and protect property is inherent and inalienable and declared higher than any constitutional sanction in Arkansas, Young v. Gurdon, 169 Ark. 399, 275 S. W. 890, and the public health, safety and welfare is always threatened when a person wrongfully trespasses upon another person’s property in Arkansas. Especially is this true when the trespasser persists in the trespass and defies the owner’s right to possession. Whether such trespass may become a matter of regulation through the police power depends upon the exercise of that power hearing a real and substantial relationship to an end which promotes or protects the public health, safety or welfare.
In the case at bar appellant’s right to possession of the property terminated upon the expiration of the week for which she had it rented. Appellant claims no title or right in the property and claims no right to retain its possession. She does not base her continued possession upon any claim of right whatever, except a right to force the owner to the expense of bond, attorney’s fee, and irrecoverable court costs in civil litigation. The option in pursuing a civil remedy lies with the property owner and any defense available to appellant in a civil action is still available under the penal .code. Section 50-523, supra, by its provisions, relates only to one who “shall refuse or fail to pay the rent therefor, when due, according to contract” and after ten days notice to vacate, “shall wilfully refuse” to do so. Thus limited in its scope, § 50-523 relates only to one who has become a trespasser on property as a result of giving up all legal rights to its possession and after ten days notice wilfully refusing to remove therefrom with the necessary criminal intent to deprive the rightful owner of his property.
No one can seriously argue that wrongful trespass does not come within the police power of the state, and the use of the police power to prevent such wrongful acts which disrupt the well-being, peace, happiness/, and prosperity of people, surely bears a real and substantia] relationship to an end which promotes the public health, safety and welfare. The use of police power in dealing with unlawful trespass is not so unreasonable as to amount to a violation of substantive due process, and ten days notice to vacate premises one holds wrongfully is more than liberal in keeping with our standards of procedural due process.
We cannot say that § 50-523 is unconstitutional as an invalid exercise of the police power of this state or that it deprives appellant of her right of due process. Therefore, the judgment of the trial court is affirmed. | [
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Conley Byrd, Justice.
Appellants Pete C. Mergen-schroer et al appeal from a chancery decree refusing to enjoin appellee Gerald Ashley’s operation of Jo-Jo’s Bar-B-Que at 3401 Parker Street, North Little Rock, as a nuisance, and refusing to cause appellee to remove as an obstruction that portion of his barbecue pit that extended into the street right-of-way. For reversal appellant relies upon the following points:
I. The Chancellor erred in holding that the North Little Rock Board of Adjustment was empowered to allow and approve defendant’s building his structure into the public right-of-way.
II. The Chancellor erred in refusing or declining to order the defendant to remove that part of the structure known as Jo-Jo’s Bar-B-Q which extended into the street right-of-way.
We do not reach the alleged error of the trial court in holding that the North Little Rock Board of Adjustment was empowered to allow and approve appellee’s building of the encroachments on the street, because appellants have failed to show any special damages which would entitle them to enjoin the encroachments.
The record shows that the dedicated street right-of-way is 50 feet; that the paved or traveled portion of the road comprises some 25 or 30 feet; and that appellants readily recognize that they could not drive on the 8 or 9 feet of the dedicated right-of-way obstructed by the barbecue pit.
In Adams v. Merchants & Planters Bank & Trust Co., 226 Ark. 88, 288 S. W. 2d 35 (1956), we held that before one could abate an encroachment upon a public street he must show special damages not common to the public at large. Here the encroachment shown is not on any portion of the street which appellants propose to use and because of their failure to show any special damages from the encroachments not suffered by the public in general, we find their contentions to be without merit.
Affirmed. | [
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Smith, J.
Appellee brought this suit against Edgar P. Johnson, the guardian of W. E. Johnson, an insane person, to recover the sum alleged to be due upon a promissory note dated January 16, 1915, for $1,000, executed by W. E. Johnson to appellee’s order. Indorsed on the back of the note were the following credits: “Received on within note $56.50, February 23, 1918.” “Received on the within note $100, March 8, 1923.” These credits were indorsed in the handwriting of appellee.
Appellee was called as a witness in his own behalf, . and, over the guardian’s objection, was permitted to testify that the maker of the note had made the payments indorsed on the note. There was no other testimony showing that the payment of $56.50 credited under date of February 23, 1918, had been made. A, witness named M.. T. Rhodes, a nephew of appellee, testified that, as a boy, he heard a conversation between appellee and "W. E. Johnson in regard to a note, at which time a payment on the note was made, but the witness could not state in what year this conversation occurred nor could he identify the note sued on as the one upon which the payment had been made. The $100 payment was shown, however, by the testimony of two other witnesses — Rhodes and Davis— to have been made,' and to have been made at a date eárlier than the 20th of February, 1923, although the payment was not indorsed on the note until the 8th of March thereafter. These witnesses testified that they were indebted to Johnson, and that appellee was their surety, and that their accounts to Johnson, amounting to $100, were settled by an agreement whereby appellee was to -credit the amount of these accounts on the note. This was done, and their indebtedness to Johnson was discharged in this manner. Appellee 'testified, over the guardian’s objection, that the $100 credit was not indorsed on the note at the time it was allowed, for the reason that the note was not at hand at that time, and that the credit was later indorsed, but that the payment was actually made about the middle of February.
There was testimony tending strongly to show that the note was paid; that it was Johnson’s custom to borrow money from appellee and to make settlements about the first of the year, at which time the indebtedness would be ascertained and a note given to evidence it, and that Johnson never had outstanding more than one note at any one time to appellee. Appellee had another note executed by Johnson to appellee’s order, which he presented to Johnson’s guardian after Johnson became insane, and the guardian paid this note, and it is insisted that the note sued on had been paid, but had not been taken up when paid, because appellee stated, when the renewal note was made, that the note in suit had been lost. The testimony of Johnson’s bookkeeper tends very strongly to support this defense, but appellee categorically denied the bookkeeper’s testimony and the court, sitting as a jury, resolved this conflict in appellee’s favor, and that finding is binding upon us.
Ap-pellée had the right to deny the testimony of the bookkeeper, as such testimony did not offend against the prohibition of § 4144, C. & M. Digest, which provides that “in actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other ias to any transactions with or statements of the testator, intestate or ward, unless called to testify thereto by the opposite party.”
Objection was made to the testimony of appellee to. the effect that payments on the note were made in 1918 and in 1923, but the court overruled the objection tentatively, upon the statement of appellee’s counsel that, if the testimony was not finally shown to be competent, it could be excluded and not considered by the court. The case /was tried by the court without a jury. Counsel for appellee asserts that it was his understanding, at the time this testimony was offered, that other testimony would show the payments had been sent to appellee by Johnson, but, when the testimony failed to establish that fact, it was conceded that appellee had given incompetent testimony, in that he had testified to transactions with the ward of the defendant guardian, and that thereafter the court was not asked to, and did not, consider this incompetent testimony, and that this testimony was not considered by the court in the findings of f'act made, but that the findings which were made were based upon testimony which was competent, to-wit, the testimony of Davis and Rhodes.
At the conclusion of all the testimony the court made the following findings of fact:
‘ ‘ The court finds that the plaintiff, in his own handwriting, on February 23, 1918, placed the following indorsement on said note: ‘Feb. 23, 1918, received on within note $56.50; ’ that said indorsement was written on said note by the plaintiff on February 23, 1918, within the five-year period of the statute of limitations. The court further finds that said note has an indorsement on the back thereof, in the handwriting of the plaintiff, dated March 8, 1923, as follows: ‘March 8, 1923, received on within note $100.’ The court finds that said indorsement was written by the plaintiff on March 8,1923, but further' finds, from the testimony of the witnesses Davis and Rhodes, that, on or about February 17, 1923, and before the 20th of February, 1923, said witnesses were indebted to W. E. Johnson on their several accounts, which accounts the plaintiff, Spangler, was surety for, and that the s'aid W. E. Johnson, by agreement with Spangler, credited their accounts on his books with the amount due him, and directed the plaintiff to credit his note with the amount; that there is no testimony in the record to refute the testimony of Davis and Rhodes that such credit was entered before the 20th of February, 1923, and that Spangler received a payment on said note within five years from the date of the former credit; and that the plaintiff, Spangler, received the credit on said note before the 20th of February, 1923, and before the bar attached, but wrote the indorsement showing the credit on March 8, 1923.”
Upon these findings the court rendered judgment for the face of the note, less the credits, with the interest thereon, and the guardian has appealed.
The guardian requested the court to make finding's ■ that the note had been paid; that it was barred by the statute of limitations; and that there was not sufficient competent testimony to show that a payment had been made on the note within five years before the institution of this suit. These requests were refused, and error is assigned upon these refusals. It is .also insisted that the court erred in admitting and in considering the erroneous testimony showing transactions between appellee, the plaintiff below, and the ward of the defendant guardian.
It is conceded that most of the testimony given by appellee was incompetent, las being in violation of the statute quoted above, but it is insisted that this testimony was not considered by the court, and that there was sufficient competent testimony to show a payment on the note by Johnson within five years of the date of the institution of this suit.
In the case of St. Louis, I. M. & S. Ry. Co. v. Berry, 86 Ark. 309, 110 S. W. 1049, it was said that, “in a trial of a case before the court sitting without a jury, the presumption is that the court considered such testimony only as was competent.” This presumption is reinforced by the findings of fact set out above, in which the court recites that the finding as to the payment made by Johnson on or about February 17, 1923, was based upon the testimony of Davis and Rhodes. See also Pace v. Crand all, 74 Ark. 417, 86 S. W. 812; Covington v. St. Francis County, 77 Ark. 258, 91 S. W. 186.
The competency of the testimony of the witnesses Davis and Rhodes is not questioned, and their testimony, if credited, as was done by the court, shows a payment on the note within five years of the date of the institution of the suit, land at a time when the maker of the note was sane.
Now, if the payment credited as having been made in 1918 could be «aid to have been shown to have been made by competent testimony, then the note was not barred by the statute of limitations when the last payment was made in 1923. It was evidently the opinion of the trial court, as reflected by the findings of fact, that the indorsement of the 1918 payment arrested the running of the' statute of limitations and formed a new period from which the statute ran. It has been said, however, that “where payments are relied upon fiy stop the running of the statute of limitations, the burden of proof is on the party alleging it to show by other evidence, in addition to the indorsement, that the payment was in fact made.” Slagle v. Box, 124 Ark. 43, 186 S. W. 299; Simpson v. Brown-Desnoyers Shoe Co., 70 Ark. 598, 70 S. W. 305; Brown v. Hutchings, 14 Ark. 84. As there was no other testimony that the payment indorsed in 1918 had been made except the indorsement itself land the incompetent testimony of Spangler, it must be held that the note was, in fact, barred by the statute of limitations when the payment'was made in 1923.
But, even though competent testimony does not show . that the payment in 1918 was made, competent and undisputed testimony does show a payment in 1923, and it becomes necessary therefore to determine the effect of that payment, as it was made within less than five years ' of the date of the institution of this suit.
In the recent case of Sanders v. McClintock, 175 Ark. 633, 300 S. W. 408, it was held that a partial payment made on the note there sued on did not have the effect of reviving that note as a subsisting obligation as to the unpaid balance, but it was so held because the circumstances attending' the payment were of such a nature as to rebut the presumption of an acknowledgment of the debt with an implied promise to pay the balance due on it. It was there said:
“The reason is that part payment is treated as an admission of the continued existence of the debt and an implied promise to pay the balance. It is equally well settled, however, that such promise is not to be implied where the part payment is accompanied bycircumstances or declarations of the debtor showing that it is not his intention to admit, by the payment, the continued existence of the debt and his obligation to pay the balance. Burr v. Williams, 20 Ark. 171; Chase v. Carney, 60 Ark. 491, 31 S. W. 43; and Joy v. Phelps, 65 Ark. 1, 45 S. W. 990.”
In the case of Gorman v. Pettus, 72 Ark. 76, 77 S. W. 907, it was held that, in the absence of rebutting evidence, proof of part payment of a debt raises a presumption that the debtor recognizes the existence of the debt and promises to pay the residue; and in the case of Less v. Arndt, 68 Ark. 399, 59 S. W. 763, it was held that part payments credited on a note by the creditor, with the debtor’s knowledge and consent, will stop the running of the statute of limitations, if there are no circumstances connected with the payment to indicate a contrary purpose.
In the case of Cox v. Phelps, 65 Ark. 1, 45 S. W. 990, the court quoted with approval the following statement of the law from the case of Taylor v. Foster, 132 Mass. 33: “The part payment must be under such circumstances as reasonably, and by fair implication, lead to the inference that the debtor intended to renew his promise of payment, and must have been made by the debtor in person, or by some one authorized by him to make a new promise in his behalf.” See also Alston v. State Bank, 9 Ark. 455; State Bank v. Wooddy, 10 Ark. 643; and numerous cases cited in the note to § 625 of the chapter on Limitations of Actions, 37 C. J., pages 1142 et seq.
In Wood on Limitations (4th ed.) vol. 1, page 601, it is said:
■ “A part payment of a debt, though made after the bar of limitations has attached, removes the bar and revives the debt, but the revival cannot .affect the rights of third persons attaching after the bar was complete and before the revival. Part payment on a debt operates as an acknowledgment of the continued existence of the demand, and as a waiver of any right to take advantage, by plea of limitations, of any such lapse of time as may have occurred previous to the payment being made. A partial payment made on account of an existing debt takes the case out of the statute of limitations. A partial ■payment of a note takes the entire debt out of the running of the statute, and time is computed from the date of such payment. The voluntary part payment of a debt, made as such, is an acknowledgment of an existing obligation, and from such acknowledgment a promise to pay the balance may be implied. It is prima facie sufficient to revive the debt, although such prima facie case, may be rebutted by attendant circumstances inconsistent with such revivor.”
It is true the payment of the hundred dollars was not made in money, but it was not essential that it should be, as the satisfaction of the demands of Johnson against Davis and Rhodes was treated by all parties as a payment of the hundred dollars. Section 112, Wood on Limitations (4th ed.) vol. 1, page 558.
As an unconditional payment of a hundred dollars was shown by competent and undisputed evidence to have been made on the note, with no circumstances to rebut the presumption that the payment was intended as an admission of the debt evidenced by the note and an implied promise to pay the balance, and as the testimony supports the finding of the court below that the note has not been paid, the judgment must be affirmed, and it is so ordered. | [
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Grieein Smith, C. J.
November 10, 1941, in an appeal styled “Abboud v. Arkansas Power & Light Company,” the trial court’s judgment on an instructed verdict was reversed because jury questions were involved. 203 Ark. 6, 155 S. W. 2d 584. See, also, concurring opinion at page 10 of the Arkansas Reports, and at page 586 Southwestern Reporter. On retrial judgment was in favor of the plaintiff for $3,999. The power company has appealed. Its contention is that most of the service interruptions were occasioned by acts of God, others by agencies over which it had no control, and that due care was exercised.
In August, 1940, plaintiff elected to base her suit upon contract as distinguished from tort. An amended complaint alleged that in August, 1936, C. B. Fowles, the power company’s district manager, advised appellee to purchase all-electric equipment, including units necessary to operate a commercial hatching plant. Assurance was said to have been given, which is referred to as a guarantee, that the company would supply adequate electric service to efficiently operate the plant. It was further alleged that, relying upon representations service would be sufficient, appellee (January 5, 1937) began business as Danville Electric Hatchery, the various units having a capacity of 32,000 eggs. Average cost of 95,000 eggs was four cents, or $3,800. Plaintiff’s contention is that if continuous current sufficient to operate the machines had been supplied, 66,500 chicks would have hatched, resulting in net profit of $1,100.
Severed service ranged from thirty minutes to forty-six hours. Chickens actually hatched were cripples of very little value. Appellee estimates that sales amounted to $100 or $200.
Power supplied the area involved comes from Sterlington (La.)-by way of the company’s North Little Bock substation, thence to Morrilton, Russellville, Dardanelle, Ola, and Danville. Appropriate transformation of voltage is made at various points. Prom transformers at Russellville the step-down is to 13,000 volts for dispatch to Dardanelle. Between Russellville and Dardanelle the service is tapped for use of Bernice Anthracite Coal Mines. The lateral leading from the power company’s primary wires to the mines is owned by the coal company and is maintained by it. Switches, with fuse protection, were on a pole set in the coal company’s property adjoining the power company’s lines. The coal company employed an electrician who was supposed to inspect and repair these switches and the lines from such connections to the mines.
The interruption of January 19, according to a power company witness, resulted from the act of a coal company agent who “used a heavy fuse, and it wouldn’t strip out. ’ ’ It seems, however, that an oversize fuse was not the cause, because a power company lineman testified that “. ... somebody at the mine had fused the switch with copper wire — made it solid.” A dog had crawled into the mine company’s substation. It then got into the conductor and caused a short-circuit, with resulting interruption of five hours at Danville.
It is in evidence that the power company had been gradually improving its service during the past few years. Some of the property was acquired prior to 1916. Appellee, in August, 1936, made her contract for electricity shortly after she had returned from a convention in Kansas City, where an inspection of electrically-heated incubators and brooders had been made. Appellant’s answer denies any special contract to supply continuous current sufficient to operate machines such as those Mrs. Abboud says were being discussed. Fowles testified appellee came with catalogues and other printed matter illustrating units she desired, and that she asked whether the company’s lines to and equipment at Danville [were sufficient] “. . . to operate the machines plaintiff desired to install.” It is conceded that Fowles “. . . informed plaintiff the current furnished by defendant corporation’s lines at Danville was sufficient to operate the machines such as plaintiff contemplated installing. ’ ’
A construction of this language in the concurring opinion of November, 1941, was that the expression “enough current,” testified by Mrs. Abboud as having-been used by Fowles, had reference to sufficient voltage, amperage, etc., — that is, the energy sufficient to operate heating units and fans. It was then said that the term “continuous current sufficient to operate the machines” contemplated maintenance of an unbroken flow; or, if broken, duration should not be so protracted as to interfere with incubation of eggs or care of the product.
T. H. Abboud, appellee’s husband, testified he was present when appellee discussed their needs with Fowles. They had “gone over” past troubles — such as interruption of power — and Fowles is represented as having said: “You go on back, lady. The Arkansas Power & Light Company is a service organization. We will take care of your needs.” This was in response to appellee’s statement that “We’ve got to know if we are going to have this current.” Appellee’s further testimony was that Fowles agreed “. . . to furnish sufficient, adequate current, continuous current, to operate the hatchery. ’ ’
A letter written by the power company April 7,1937, was received by appellee in response to complaints of bad service. It is printed in the margin.
Although in the complaint appellee stated that service interruption January 23 was two hours, in her testimony the period is fixed as forty-six hours. Her statement was that the current went off at ten o’clock Saturday night; that it remained “dead” that night and all day Sunday, “. . . and came on Monday morning for a little while.”
The law as declared in the former appeal is that the contract did not require the defendant to compensate damages if an act of God prevented it from furnishing sufficient energy to operate the plant, or if the trouble was traceable to acts over which the company had no control. . . . “It was only bound on the contract in case it was guilty of negligence in furnishing electrical power,” says the opinion.
The first interruption complained of occurred January 12. Five thousand eggs had been placed January 5, and an equal number January 7. Tbe break covered a period of two hours and forty minutes, but on the same day five thousand additional eggs were put in the machines. Whether this act occurred before, after, or during the period of interruption is not clear. It is argued by appellant that appellee was negligent in continuing to deposit eggs in the machines after the contract had been breached. Conversely, it should be remembered that appellee had invested approximately $5,000 in electrical equipment, relying, as she says, upon Fowle’s assurance that sufficient current would be supplied.
Publisher George Upton of Dardanelle Post-Dispatch, testified that during early January, 1937, severe weather occurred, with ice on trees, streets, and elsewhere. Recurrences were at intervals of a week or ten days: — “Foliage and ground were covered and glazed with ice: trees broke — practically all of them, as I recall. . . . This would have happened [according to my newspaper files] the week previous to January 21, [because the item refers to] ‘last week’.”
Appellee insists this testimony does not connect the interruption of January 12 with the storm. However, J. M. Patterson, weather observer at Danville for ten years, testifying from his records, found the following: “January 9, ice bending trees; January 10, ice still bending trees; January 11, ice on trees; January 12, sprinkle.” Patterson then stated unequivocally that “During January sleet and ice were freezing on the timber. [Conditions] were the severest I have any recollection of in this part of the country. . . . Ice and sleet [caused the interruption of two hours and forty minutes at Dan-ville complained of by Mrs. Abboud]. ... I got my first call — my first trouble — developed about four o ’clock that afternoon at 'Belleville. . . . Limbs broke off [of trees] and fell on our lines.”
The next interruption occurred January 19, and has been attributed to the coal company switch.
Appellee says power was off forty-six hours, beginning January 23. These breaks are accounted for by appellant with testimony by its linemen, and by an excerpt from Dardanelle Post-Dispatch, which was read into the record by its publisher. The newspaper reference is shown in the footnote.
January 23, 24 and 25, were Saturday, Sunday, and Monday. These days corresponded with periods mentioned in the Post-Dispatch article. Editor Upton testified that “Every machine in my office is electrically equipped. I was vitally interested and went' out to see what they were doing. ’ ’ Employes of the power company, he said, were engaged making repairs. Telephone lines were also down. His final statement is: — “The sleet storm was all over the country. ’ ’
There is no explanation of the thirty-minute inter-' ruption of February 2.
Appellant says the undisputed evidence is that the break of February 9 (three hours and fifteen minutes) was caused when lightning broke a porcelain insulator at Morrilton, and that a blown fuse was responsible for the interruption of February 21, lasting an hour and forty-five minutes.
The defense is that lightning struck a transformer February 24 and occasioned the two-hour stoppage. While lightning as a cause may be inferred from the testimony of Henry Mabry, his exact statement is that “. . . trouble developed in the substation [at Dan-ville] — burned the lightning arrester off the distribution system.” The “bad” transformer was disconnected and two good ones were utilized “. . . in order to give them light temporarily. The next morning we had to interrupt the service to change the transformers.” A new transformer was sent from Russellville. The witness testified that the two units temporarily connected would have burned out if the overload had continued.
Trouble March 3 was incidental to repairs to poles and lines, “. . . these repairs, of course, having been necessary as a result of the severe sleet storms during January.” One period of stoppage was three hours and forty-five minutes, another was for fifteen minutes.
The final interruption (two hours) occurred March 15, when poles supporting wires carrying 33,000 volts were replaced. It was necessary that the current be shut off because the line “. . . couldn’t be handled with ‘hot sticks’.”
Other Facts — and Opinion.
Appellee testified she was told the power service from Russellville to Dardanelle would be improved. At the former hearing she testified that Fowles told her the company would reroute the line where it crossed the Arkansas river. At the time in question the stream was spanned from a tower on the north side to anchorage on Dardanelle Rock on the south side. In consequence, primary wires were strung along Front street in Dardahelle in close proximity to shade trees. Subsequent to appellee’s losses the wires were attached to the bridge and brought across the river. Inferentiallyit is insisted that if this had been done between August, 1936, when appellee made her contract, and January, 1937, when the sleet storms occurred, falling limbs would not have interrupted service. It is in evidence that ice and sleet inore than an inch in thickness encrusted the wires, adding materially to their weight and to the tension under which they were normally operated.
There is nothing in the evidence to show that the sleet storms would not have damaged the lines if the bridge-route had been utilized. Testimony is convincing that communication was paralyzed by extraordinary conditions. "What acts of precaution the power company could have adopted to guard against the unusual stress is not shown; and, of course, an assumption that the weather’s fury would have been felt at one place, but not at another, is speculative. It is not denied that limbs on Front street trees were kept trimmed as far back as property-owners would permit. No break occurred in the power company’s river span.
As we have formerly shown, the first batch of 5,000 eggs was “set” January 5, and a second lot of 5,000 was placed January 7. January 12, when the first trouble came, appellee deposited a third lot of 5,000 eggs. Thereafter eggs were put in the machines, regardless of difficulties that were being experienced. While the shutdowns of January 12, 23', 24 and 25, were undoubtedly caused by natural agencies over which the power company had no control, and could not successfully guard against, the interruption of January 19 would not have occurred if appropriate fuses had been used in the coal company’s switch. The power company depended upon the coal company’s electrician for maintenance of a system so vitally tied in with the Russellville-Dardanelle lines that use of copper wire as substitute for fuses caused a short-circuit and consequent interruption for five hours. There appears to have been' a want of inspection by the power company, or a delegation of authority carelessly exercised, or an improper installation where the mine company’s wires tapped the power company’s service. In either case liability would attach.
Inclusive of January 19, 25,000 eggs had been placed in appellee’s machines. To what extent five hours without heat affected them, or how badly these eggs and an additional 5,000 placed January 21 were damaged by the interruptions of January 23, 24, and 25, is obscure. The next “setting” was January 26, one day after protracted trouble had been experienced on account of sleet storms.
Apportionment of damages to 30,000 eggs as a result of interruptions due to negligence January 19 when either 20,000 or 25,000 were in the machines, and to acts of God January 23, 24, and 25, is impossible. It is difficult to unscramble an egg; nor has anyone suggested a practical way to place Humpty-Dumpty back on the wall in an unimpaired condition.
If we disregard the thirty-minute interruption of February 2 as perhaps of little consequence, the next obstacle confronting the power company is satisfactory explanation of why three hours and fifteen minutes were required to repair a broken insulator at Morrilton February 9, or why a fuse was blown February 21, with resulting interruption of an hour and forty-five minutes. Accepting as true the testimony that trouble developed in the substation at Danville February 24 and that a lightning-arrester was burned from the distribution system, it is not shown, except by inference, that lightning damaged the arrester; or, if such were the facts, the power company did not discharge the burden placed upon it of showing that the equipment had been properly installed.
Mabry’s testimony is that when one of three transformers was damaged at Danville February 24, two others were connected and made to carry the load. The following morning they were overheating; therefore service was discontinued until a third transformer could be installed. The jury may have thought that if the two transformers carried the burden placed upon them during the night, they were not insufficient for daytime service when most of the lights were off and a much smaller load was in prospect. Also, the jury may have believed, in the absence of convincing testimony to the contrary, that cumulative periods of four hours March 3 to repair poles could have been lessened if temporary wires had been strung in order to prevent long disconnections.
The overlapping periods during which power was not available, considered in relation to the intervals from January 5 to March 9 when eggs were placed in machines; the percentage of damage caused by interruptions attributable to negligence in comparison to loss resulting frohi the acts of Grod — these are matters impossible of accurate computation. They are baffling alike to lay-witness, expert, juror, and judge.
Of one thing we are certain: there was substantial evidence that some of the trouble complained of was caused by external forces not within the power company’s control, and in respect of which there is no showing the company was negligent in not anticipating it might occur.
The judgment can not stand for an amount in excess • of $1,999.50, or one-half. If appellee will enter a remittitur of $1,999.50 within fifteen days, the judgment will be affirmed; otherwise the cause will be remanded for a new trial.
January 5, 7, 12, 14, 19, 21, 26, 28; February 2, 4, 9, 11, 16, 18, 23, 25; March 2, 4 and 9, ninety-five thousand eggs were placed in the machines, 5,000 on each date. They were withdrawn January 26, 28; February 2, 4, 9, 11, 16, 18, 23, 25. March 2, 4, 9, 11, 16, 18, 23, 25 and 30.
Periods of service interruption alleged in the complaint were: January 12, 1937, two hours forty minutes; January 19, five hours; January 23, two hours; January 24, twenty-four hours; January 25, eight hours; February 2, thirty minutes; February 9, three hours fifteen minutes; February 21, one hour forty-five minutes; February 24, two hours; March 3, four hours; March 15, two hours.
“Referring to our conversation last night regarding the interruption of our service for approximately 30 minutes which I understand inconvenienced and endangered the hatching of eggs in your incubator. You were also interrupted two or three days during the recent sleet storm, and I would suggest that you put in some other form of heating as an emergency. I understand that there are several types of incubator heating for emergency use. We cannot any more guarantee continuous service than you can guarantee the hatching of 1,000 chicks from 1,000 eggs. Ninety per cent of our interruptions are caused by the elements over which we have no control. We make every effort to give the best of service possible, and always get our men out during any kind of weather to repair the lines and renew service. Our interruption last night was caused by lightning striking an insulator on our high line below Pottsville.”
Patterson gave his profession as “railroading”' — a section foreman.
[Headline]: “Freezing Rain Does Much Local Damage.” The text is: “The beautiful shade trees of Dardanelle, a feature of the city that is noted and admired by every visitor, suffered heavy damage last Friday, Saturday and Sunday, by the freezing rain and sleet storm that encrusted every branch and twig with a heavy coating of ice. Weighed beyond the breaking point, few trees escaped the loss of at least several limbs, and some were entirely destroyed. Sunday afternoon most of the streets of the city were blocked to traffic by dense masses of ice-covered trees.”
The number would be 20,000 if power was shut off January 19 before 5,000 eggs were placed that day, or 25,000 if the shut-down occurred after the deposits had been made. Mrs. Abboud’s testimony does not clarify this point. | [
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Mehaeey, J.
The appellant, plaintiff below, filed suit in the Pulaski Chancery Court against the appellee, alleging that the appellee was a corporation, and that the Pulaski Ice Company, in August, 1922, offered to employ plaintiff as general adviser and financial adviser of said company and its operations, at a salary of $100 a month for a period of two years, or until a certain prospective loan of $15,000 Was paid, provided said plaintiff .would procure a loan of $15,000 to said company on the security of certain of its property. A copy of said offer is -hereto attached and made part of the complaint.
Plaintiff alleged that the offer was accepted, and that plaintiff succeeded in procuring a loan of $15,000, and that said company executed and delivered to said lender its notes, aggregating $15,000,' and a mortgage on its corporate property as security therefor, and received from said lender the isiurn of $15,000. That, upon the completion of said loan, the said Pulaski Ice Company became bound to plaintiff as set out in said offer. That the plaintiff has at all time been ready, willing and able .to render service as general supervisor of said business, and .stood ready at all timéis to render service when 'called on by said Pulaski Ice Company. That plaintiff has received from said company on said contract the sum of $400 in payment of his services for September, October, November and December, 1922. That no amount has 'been paid on said account since December, 1922.
Plaintiff then alleges that the loan to the ice company had been paid off on or about January 1, 1924, and, according to the contract, his employ terminated two years after date of said contract. That the Pulaiski Ice Company is indebted to him for two years’ salary, less the sum of $400, which was paid as aforesaid, leaving a total of $2,000. That the Pulaski Ice Company owned considerable property, describing same, and, about January 1, 1924, the defendant, Runyan Creamery, purchased all the assets of the Pulaski Ice Company and aissumed all the liabilities of the said ice company. That the Pulaski Ice Company and the defendant, Runyan Creamery, failed to comply with §§ 4870 to 4872, inclusive, of Crawford & Moses’ Digest, and as amended by act 374 of the Acts of 1913. That all of the property of the ice company was sold and transferred in bulk, otherwise than in the ordinary course of business and tdade, and was transferred and sold to the defendant without giving this plaintiff creditor ten days ’ notice before the sale thereof, as required (by law. That the defendant, Runyan Creamery, holds all of said property as receiver, and is accountable to plaintiff as such for all property coming into its possession from said Pulaski Ice Company. He prays for judgment for $2,000, with interest at 6 per cent, per annum, and costs.
The offer attached to plaintiff’s complaint is as followls:
“Little Rock, Ark., Aug. 11, ’22.
“Mr. W. D. Cammack,
821 Southern Trust Building,
Little Rock, Arkansas.
“Dear sir: We desire to negotiate a loan on the Pulaski Heights company property for $15,000, payable $5,000 per year, beginning September 1, 1923. This loan to be secured by first lien on the entire property of said company. Por this loan we propose to pay 7 per cent, interest per annum, plus 2 per cent, brokerage fee.
“If you can negotiate this loan for us on this basis we are willing and hereby propoise to pay you $100 per month for a general supervision of the property until the foregoing loan is paid in full. It is understood, however, that, in the event that this loan is paid before the expiration of two years, you are to receive $100 per month for a period of two years anyway, but, after the expiration of the two years, the $100 per month, as herein stated, shall terminate upon the payment of the balance due on the loan.
“This proposal is made subject to immediate acceptance, and shall not be binding upon the company if, for any reason, it is not accepted by you by 1 o’clock in the afternoon of August 12.
“Yours very truly,
“Pulaski Heights Ice Co.
“By W. P. Moody, President.”
Plaintiff thereafter filed an amendment increasing his demand to $2,600.
The defendant answered, denying all the material allegations of plaintiff’s complaint, and alleged that the ice company borrowed from either the plaintiff or from his brother-in-law, S. L. White, or from both of them, the sum of $15,000, and delivered to S. L. White a mortgage on its property to secure said notes. That the ice company paid, in addition to the 7 per cent, either to jS. L. White or the plaintiff', or both of them, a brokerage fee of three hundred dollars. That, in addition, to the brokerage fee, plaintiff’ demanded and the Pulaski lee Company agreed to pay plaintiff $100 per month for a period of two years, or until said loan of $15,000 was fully paid. That no employment or services of the plaintiff were contemplated, and the plaintiff rendered no services to the Pulaski Ice Company as general supervisor, financial adviser, agent, or in any other capacity, but that said $100 per month was simply an additional sum or bonus demanded by plaintiff as compensation for the use by the Pulaski Ice Company of the principal sum of $15,000. That the arrangement by which plaintiff was mentioned as financial adviser of the Pulaiski Ice Company at a s'alarv of one hundred dollars per month, was simply a cloak and a device to cover an usurious transaction. That either plaintiff was the principal lender of the money, or S. L. White was his agent, or ¡¡4. L. White was the principal lender and plaintiff was his agent. That the plaintiff was not its agent. That if the Pulaski Ice Company had paid the plaintiff $100 per month in addition to interest and brokerage fee, it would have paid more than the lawful rate of interetet of ten per cent, per annum upon this loan, and the defendant therefore pleads usury as a complete defense to this action.
S. L. White testified that Cammack came to him with a letter from Mr. Moody, and stated that he was figuring on negotiating’ a loan for the ice company on their property, located out on Pulaski Heights. Thai witness wont into the legal phases of the transad ion, and drafted a somewhat different letter from the one. presented for signature of the Pulaski Ice Company, which he understood was accepted, and he then prepared the waiver of notice of meeting of the director®, the minutes for the stockholders’ meeting, the minutes for the directors’ meeting, a deed of trust to he executed by witness, with a note to be executed for $15,000. Witness prepared these papers. Later the papers were presented to witness, showing that the corporate meetings had been held, and the deed of trust and note. Witness then islsued Iris check on the People’s Savings Bank for $15,000, payable to the order of the Pulaski Ice Company. Witness stated that ho did not make the loan himself. That the $15,000 Ava's furnished by the People’s SaAdngs Bank. That Mi’. Cammack and AAdtness did not borroAV the money from the People’s 'Bank. Witness did not guarantee the loan. That it Avas possible that Mr. Cammack made some sort of moral guaranty to the bank.
Witness then identifies the deed of trust and copies of minutes of stockholders’ meeting and directors.’ meeting and the coupon notes. The resolutions of the stockholders Avere introduced,’ authorizing1 the company to isisue notes and make the mortgage on the property, and also resolution that the board of directors Avas authorized t o employ W. D. Cammack as financial adviser of the property of the company for a period of three years, at a salary of $100 a month, the employment to cease at the expiration of two years, if the company can by that time arrange to liquidate all of its mortgage or bonded indebtedness.
Minutes of the directors’ meeting Avere also intro-, duced, showing authority to the president of the company to make a deed of trust to S. L. White and to execute the note, and authorizing- the president to employ W. D. Cammack as financial supervisor for three years at $100 per month.
W. L. Lenon. testified that he is now and Avas the president of the People’s SaA-ings Bank in 1922. He knew the parties. That he talked to Mr. Moody,' the president of the ice company; that Mr. Cammack told him that he made that loan, and that he wished to sell it to us. That the result of the conver station with Cam-mack was that the bank agreed to buy it on the guaranty of .himself and Mr. White. They were to guarantee it. Cammack told witness: that he was going to look after the affairs of the ice complany. He made the loan largely on Cammack’s guaranty that it would be paid and that he was going to see that the affairs of the concern would be so operated that it would ¡be promptly taken care of. The last note was paid January or'February, 1926. Witness testified that the bank was looking to the property, and that, if the property didn’t make it, for Mr. Cam-mack to take care of it, and that the ¡bank would not have made the loan on the property alone.
Witness further testified that they bought the loan, which was secured by a mortgage on that property, but with the additional guaranty that it would be taken care of.
W> D. Cammack testified that he- was interested in the improvements and developments, in that part of town. That Mr. Moody started an ice plant. Witness, discussed it with him before the foundation was well under way. He tried to sell witness stock, -and they discussed the different features. He saw_ Mr. Moody at the bank, and Moody told him, briefly, that some of the stockholders had fallen down on him, or subscribers of stock, and that he Avas in need of funds. Witness displayed some interest, and lent Muody words of encouragement, and suggested that he come to the office for another conference. The}7 went into the physical property rather closely, and it finally resulted in a statement to Mr. Moody that witness thought he could negotiate and arrange for this money that he seemed so in need of, and work out a proposition as stated in the letter. Witness did not loan this money. Never had five cents invested in it; did not guarantee the payment of it, strictly speaking, to Mr. Lenon. He did assure him, however, that he had, by action of the board of directors and stockholders of the ice plant, representation of the company during the life of this indebtedness, and that he would stay in personal touch with it and see that he got his money. He testifies as to the reason for his handling the matter in that way. He may have stated to Mr. Lenon that Mr. White had made the loan, and that the papers were completed and passed on.
Witness had Mr. Lenon agree to take it, and had Mr. White issue a check on the People’s Bank in payment -of the notes. The check was only charged to Mr. White as a bookkeeping transaction. It wais simply a transfer of this record. Witness had in mind at the time that the People’s Bank might not take the loan, and he might be able to transfer it to some other bank, and, so long as it was in White’s name, he was in a position to borrow at most any bank in Little Rock. Witness did not put five cents of his own money into the loan. He wlais not in a position to make any such loan. He did not guarantee to Mr. Lenon it would be paid. He represented to Mr. Lenon he was interested in the ice company; that he had mortgages on their entire property, and, in addition, had the guaranty of Mr. Moody and Mr. Stanton that $5,000 of the loan would be taken by them personally in event the company defaulted. He also told Lenon that he was in touch with and would remain in touch with the company until the obligations were taken care of. He had an idea that he might have to do seme negotiations and maybe take over the management and keep it going until a deal could be worked out. Following this loan transaction he held many conferences with Mr. Moody and others up to the time Mr. Moody’s interest was sold on foreclosure. He conferred with Mr. Moose, who succeeded Mr. Moody, and, at the time Moody’s stock was sold, he was present, and, if it had been necessary, he would have bought the- same. Moose said that it was his intention to take care of these transactions, so he did not bid for the stock.
Witness stood ready to perform many services in connection with this transaction. He had many conferences with Mr. Moody about the affairs of the ice com pany and the conduct of it, its sales contracts, and the general run of the business. Afterwards there was a manager put in, and witness conferred with him many weeks, and listened to his troubles, and offered words of counsel and advice, and conferred with other people, at his suggestion, about the affairs of the ice company. That he was devoting his time when called upon, and stood ready and willing at all times. He told Mr. Moose that he stood ready to refinance the company if it was necessary. He stood ready to negotiate and help out any way that was necessary in order to keep faith. The service performed for the ice company would be necessarily for the benefit of this loan, but witness conferred with the company and many people about buying* stock in the company, and explained his. connection with it. All of those things were naturally for the benefit of the loan, tout they were also for the benefit of the ice company. The salary started concurrently with the loan. Witness was not a stockholder, and attended no stockholders’ meeting. The brokerage fee of $300 was paid to the People’s Bank. None of it went to White or witness. Witness discussed the affairs of the company with Moody and Moose.
W. F. Moody testified that he was the president of the Pulaski Ice Company in August, 1922. ' He was instrumental in organizing the company, and secured several subscriptions that were not paid, but went ahead and constructed the plant, with the understanding that these subscriptions would be paid at the time they needed the money. When tho plant was completed, some of the subscriptions were not paid, and it left them financially in pretty bad shape, and witness tried then every conceivlable place that he thought he might be able to get a loan on the property, without result, until he made this trade with Mr. Cammack. The arrangement with Mr.' Cammack was one of the terms and condition which he made in regard to the loan. It was contemplated that Mr. Cammack would act in an advisory capacity concerning financial matters whenever he was called upon. A financial supervisor at $100 a month was not needed by the Pulaski Ice Company after the loan was consummated. Mr. Cammack never rendered any service to the company other than in an advisory capacity.- Witness felt at liberty to call on Mr. Cammack at any time.
George D. Rumrill testified, in substance, that he was the manager of the Pulaski Ice Company from December, 1922, to March, 1924. That Mr. Cammack did not offer his services as financial adviser to- him. He did not attend any of the meetings of the stockholders or directors. The services of a financial supervisor were not needed during that period. Witness, after refreshing his memory, said he did have at least one conference with Mr. Cammack.
Miss E. Francis Rumrill testified, in substance, that she was secretary of the Pulaski Ice Company from the fall of 1922 to the same time in 1924, and kept its books during that time. During that time Mr. Cammack did not offer any financial advice. He did not come to the plant other than to buy ice cream. Mr. Cammack did not attend any directors’ or stockholders’ meetings.
I. 0. Runyan testified that he bought for the Runyan Creamery a controlling interest in the Pulaski Ice Company on February 1, 1924. At that time the Pulaski Ice Company owed Mr. White on the mortgage. The last note was paid in January, 1926. From February, 1924, to January, 1926, he had control of the company. Mr. Cammack did not offer any services as financial supervisor or fiscal agent. He performed no -service during that time.
The following letter was introduced, -by agreement:
“Little Rock, Ark., August 12, 1922.
“Mr. W. D. Cammack,
Southern Trust Building,
Little Rock,- Arkansas.
“Dear sir: I have just talked to Mr. Stanton with reference to our conversation of a few moments ago. He has agreed to indorse one of the $5,000 notes with me. In other words, then, this letter is a confirmation of our verbal agreement of this date, wherein you agreed to negotiate a $15,000 loan on the property of the Pulaski lee Company, secured by a first mortgage on the plant complete. The loan to bear 7 per cent, interest per annum, payable as follows: $5,000 paya ble September 1, 1923; $5,000 playable September 1, 1924; $5,000 payable September 1, 1925.
“In addition to the 7 per cent, interest per annum from date until paid, we agree to pay a brokerage fee of 2 per cent., or a total of $300 brokerage fee, and to pay you for general financial supervision, or as fiscal agent of the property, $100 per month for a period of two years, and thereafter until the loan aforesaid is paid in full, or until some other satisfactory arrangement shall have been made.
“Yours very truly,
“Pulaski Ice Co.,
“W. F. Moody, President.”
Mr. W. D. Cammack was then called as a Avitness again, and stated that he thought Mr. Rumrill’s memory was faulty, and that he conferred seA^eral times with him, and two instances were very distinct in his mind. One was the selling of some stock to Snodgrass & Bracy, or to some member of the firm. Witness saAV those gentlemen and discussed the matter with them at length; and also there was a transaction with Shoemaker-Bale. Witness did not borrow any money from the People’s Bank in connection Avith this transaction. The money came from the People’s Bank.
The question in this case is Avhether the agreement or contract betAveen the parties constituted usury. And, as contended by appellant, the burden of proof is upon the party who pleads usury to show clearly that the transaction was usurious. There must be an agreement between the parties by Avhich the borroAver promises to pay and the lender knowingly receives a higher rate of interest than the statute allows for the loan or forbearance of money, or such greater rate of interest must be knowingly reserved, taken or secured for such loan or forbearance. And tbe wrongful act of usury will not be presumed or imputed to the parties and it will not be inferred where the opposite conclusion can be reasonably and fairly reached. See Bryant v. CarlLee Bros., 158 Ark. 62, 249 S. W. 577, and cases cited there.
If the contract for service by Cammack, the agreement to pay him $100 per month, was a contract in good faith, intended as a payment for services performed and not as a device to hide usury, the contract would be valid. It would not be usurious. This, however, is a question that must be determined from all the evidence in the case.
The appellant contends that the loan was not made by him as principal, but was procured as agent of the Pulaski Ice Company. He argues that, even if it was made by appellant as principal, it was not usurious. The appellant contends that the loan was made by the People’s Savings Bank, and Mr. White testifies that he did not make the loan himself, but the People’s Savings Bank furnished the money.
Mr. W. E. Lenon, president of the People’s Savings Bank, testified that the bank did not make the loan. They bought a loan which had already been made.
It appears that the note and mortgage were made to Mr. White, and that the bank purchased the loan, as stated by Mr. Lenon, and that neither Mr. White nor Mr. Cammack put any of their money into it. What they did was to prepare the papers as if Mr. White was lending the money; arrange with the bank to take the loan, which Mr. Lenon says had already been made, and the papers were carried to the bank, and White gave his check on the People’s Savings Bank for the $15,000.
Appellant states in his brief: “Both testified they not only did not advance the money themselves, but did not even borrow the money from the People’s Bank”. But, as they say, the undisputed facts are that the deed of trust was drawn and the notes made payable to White; White drew his check on the People’s Savings Bank to the order of the Pulaski Ice Company, and indorsed the notes to the People’s Savings Bank without recourse. No matter where the money came from, the fact remains that the ice company made its note and mortgage to White, and, on the execution of this note and mortgage, received from White the money or the check for the money. The note was for $15,000, with 7 per cent, interest, and the proof shows that, in addition to this, interest, $300 was paid as brokerage fees, and that Mr. Cammack was to receive $100 per month for two years, or until the entire $15,000 had been paid by the ice company.
The appellant argues that the reasonableness of the contract must be tested by the condition existing at the time it was made, and states that Moody, the president and general manager of the ice company, had tried, as he testified, in every way to secure a loan for the company, without success. This was the condition, according to the evidence, when Mr. Cammack agreed to assist them in getting the $15,000. But apparently as a part of this transaction was the agreement to pay Mr. Cammack $100 per month, as above stated, and the letter from the Pulaski Ice Company to Mr. Cammack, introduced by the appellant, contains the following: “If you’can negotiate this loan for us on this basis we are willing and hereby propose to pay you $100 per month for a general supervision of the property until the foregoing loan is paid in full. It is understood, however, that, in the event that this loan is paid before the expiration of two years, you are to receive $100 per month for a period of two years anyway, but, after the expiration of the two years, the $100 per month as herein stated shall terminate upon the payment of the balance due on the loan.”
There is some little conflict in the testimony, but Mr. Cammack in his testimony does not claim that he performed any services, except he had numerous conferences, and not only discussed the matter with the president and manager, but had conferences'with some other people, and names at least two of them. Mr. Cammack also testifies that the salary started concurrently with the loan. That he was not a stockholder, and attended no stockholders’ meetings. As a matter of fact he was sim ply, according to the testimony, to act in an advisory capacity.
Mr. Moody, the president, was asked this question:
“Q. I will ask you if that arrangement was one of the terms and conditions which he made in regard to this loan? A. Yes; that was one of the terms under which the loan could be made.”
He then said it was contemplated that he would act in an advisory capacity concerning financial matters whenever he was called upon.
"When asked if a financial supervisor was needed after the loan was consummated, he stated that he did not think so. That Mr. Cammack never rendered any service other than in an advisory capacity. It is true, he testified, that he felt at liberty to call on Mr. Cammack at any time.
Mr. Rumrill, who was manager afterwards, testified that Mr. Cammack did not offer his services as financial adviser to him. That he did not attend any of the meetings of the stockholders or directors. After refreshing his memory, he testified that he did have at least one conference with Mr. Cammack.
Miss Rumrill testified that she was secretary from the fall of 1922 to some time in 1924, and that Mr. Cam-mack did not offer any financial advice. He did not come to the plant other than to buy ice cream. A financial adviser was not needed during that period.
Mr. Runyan testified that he bought a controlling interest in the ice company, and at that time the ice company was indebted to Mr. White on the mortgage. That he had control of the company from February, 1924, to January, 1926, and that Mr. Cammack did not offer any services as financial adviser or fiscal agent. He performed no service during that time.
Whether this contract for the services of Mr. Cam-mack was made in good faith and not as a payment for the loan of the $15,000 is a question of fact.
The appellant in his brief states: “Had the People’s Savings Bank received the $100 per month, it might be suggested that the transaction is tainted with usury. But the facts are that the bank made the loan. It only received the brokerage.”
The chancellor evidently found that the bank did not make the loan, because Mr. Lenon testified positively that the bank purchased the loan that had already been made. If the People’s Bank did not make the loan,'.and Mr. Lenon testified that it did not, but bought a loan already made, then either Mr. Cammack or Mr. White made the loan, and if, as stated by appellant in his brief, it would have been tainted with usury 'if the People’s Bank had received the $100 per month, certainly if the person who did lend the money received the $100 per month it would be tainted with usury.
The chancellor found for the defendant, and it is the settled rule of this court that, unless the finding of the chancellor is against the preponderance of the evidence, his decree will not be reversed by this court. There is no controversy or difference of opinion about the law. But whether the contract was usurious or not depends entirely upon the evidence.
And, since we cannot say that the chancellor’s finding- was against the preponderance of the evidence, the decree must be affirmed. | [
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Hart, C. J.,
(after stating the facts). The principal ground relied upon for a reversal of the judgment is that the verdict is so clearly against the weight of the evidence as to shook the sense of justice of a reasonable person, and that the ease is controlled by the rule of law announced in Oliver v. State, 34 Ark. 632, and Singer Manufacturing Co. v. Rogers, 70 Ark. 385, 67 S. W. 75, 68 S. W. 153. In so far as it might be said that these cases sustain a holding that this court will set aside the verdict of a jury where there is any substantial evidence to sustain it, they are against the current of decisions in this State and are contrary to the long-settled rule of this court on the subject.
The subject has been discussed at length by this court, and no useful purpose could be accomplished by again going over the same ground. Our Constitution provides that judges shall not charge juries with regard to matters of fact, 'but that they shall declare the law. Hence it is -within the peculiar province of the jury to pass -upon the credibility of the witnesses land the weig’ht to be given to their testimony. It has been held repeatedly to be the duty of the trial court to set aside a verdict and grant a new trial where it is of the opinion that the verdict of the jury is contrary to the weight of the evidence. On the other hand, after the jury has weighed the evidence and the circuit court has given its approval to the judgment by refusing to grant a new trial on the ground that the verdict is contrary to the evidence, it is the duty of this court to uphold the verdict where there is any testimony of a substantial character to support it.
The testimony of the defendant was of a matter about which he claimed to have personal knowledge. He testified in definite terms that he did not agree to buy the automobile in question from the plaintiff, and that the same was not delivered to him or to any one for him. His testimony 'related to matters which might or might not have occurred, according to the truth or falsity of his testimony. His testimony therefore was evidence of a substantial character, and, if believed fey the jury, was sufficient to warrant a verdict in his flavor. Catlett v. Railway Co., 57 Ark. 461, 21 S. W. 1062, 38 Am. St. Rep. 254; St. Louis Southwestern Ry. Co. v. Ellenwood, 123 Ark. 428, 185 S. W. 768; Chaney v. Mo. Pac. Rd. Co., 167 Ark. 172, 267 S. W. 564; St. Louis-San Francisco Rd. Co. v. Pearson, 170 Ark. 842, 281 S. W. 910; Mo. Pac. Rd. Co. v. Barry, 172 Ark. 729, 290 S. W. 942. Numerous other decisions might be cited in support of this view of the law, but this court has so long and so uniformly adhered to the rule that we do not deem further citations necessary.
It is next insisted that the court erred in modifying and giving as modified instruction No. 1, which reads as follows:
“The question submitted for your consideration is whether there was a sale of the car in question by plaintiff, E. J. Chalfant, to the defendant, John P. Haralson. To constitute a sale there must have been an agreed price between the plaintiff and the defendant, and, if you find there was an agreed price, and the defendant or his agent or agents, if you find there was lan agency, actually received the car, you should find for the plaintiff.”
'The particular objection to the instruction is the use of the words “actually received the car.” There was no error-in modifying the instruction to insert the word “actually” before the words “received the car.” The defendant had pleaded the statute of frauds contained in § 4864 of Crawford & Moses’ Digest, which reads as follows:
“No contract for sale of goods, wares and merchandise, for the price of thirty dollars or upward, shall be binding- on the parties, unless, first, there be some note or memorandum signed by the party to be charged (a); or second, the purchaser shall accept a part of the goods so sold and actually receive same (b); or third, shall give something in earnest to bind the bargain, or in part payment thereof (c).”
That part df the -section applicable to this case was whether the defendant actually received the automobile, and the court was evidently applying the language of the statute so as to present a concrete case to the jury. No objection was made to the action of the court in reading the section of the Digest in question to the jury. The word “actually” as used in the statute simply means that the purchaser shall in fact receive the goods alleged to have been purchased by him. Hence we do not think the objection to the instruction is well taken, and are of the opinion that it is a correct declaration of law as applied to the facts in the case at bar.
It is next insisted that the court erred in refusing to give instructions Nos. 2 and 3, which read as follows:
“No. 2. To constitute a delivery it is not necessary that any particular thing be done by either of the parties, but any act on the part of the plaintiff by which he relinquished control over the oar in question, coupled with an acceptance of control by defendant, would amount to a delivery.
“No. 3. On the question of delivery, you are instructed that delivery is a question of intention of the parties, the one to deliver and the other to accept, as manifested by overt acts, and .a sale would be complete, if you find there was a sale, or rather an agreed price between the parties, where any act was done which was intended by the parties as a delivery by the one and an acceptance by the other. ’ ’
In addition to instruction No. 1, the court gave instruction: No. 4, which reads as follows:
“You are instructed that the defendant could receive the car by 'agent as well as in person, and, if the defendant actually received the car, you should find for the plaintiff. ’ ’
The court, on its own motion, also instructed the jury as follows:
“You are instructed that, before the plaintiff can recover in this case, he must show that a delivery was made on the part of the plaintiff 'and. that an actual acceptance was made on the part of the defendant, and you are to consider any and all facts and circumstances proved in this case in arriving at the intentions of the parties to this suit.”
It will be .observed that the respective theories of the parties to this suit were fully and fairly submitted to the- jury in the instructions given by the court, and, under the settled rules of this court, the trial court is not required to multiply instructions -on the same point or to give instructions on the same subject in varying form. The issues of fact in this case were simple, and the evidence was in direct and irreconcilable conflict. The case was submitted to the jury under instructions fully giving the respective theories of the parties, and, under our settled rules of practice, we cannot disturb the verdict of the jury.
We find no prejudicial error in the record, and the judgment will therefore be affirmed. | [
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Humphreys, J.
This suit was brought in the circuit court of Sevier County by appellee, a creditor of the J. L. Cannon Company, a corporation, in the sum of $1,156.74, to enforce the statutory liability of the president and secretary of said corporation for failure to file the annual report required by §§ 1715 and 1726 of Crawford & Moses’ Digest. All necessary allegations were made in the complaint to fix liability for said amount upon Mrs. E. I. Cannon, as administratrix of the estate of J. L. Cannon, who was the secretary of said corporation, and against her individually as president of the corporation.
Mrs. E. I. Cannon, as administratrix of the estate of J. L. Cannon, filed an answer admitting that she was administratrix of the estate and that J. L. Cannon was secretary of the corporation, J. L. Cannon Company, but denied that the J. L. Cannon Company was indebted to appellee in the sum alleged or that the officers of the corporation had failed to make the report required by said sections of the statutes; and for herself individually denied all the allegations of the complaint, particularly denying that she was ever president of the J. L. Cannon Company.
In the course of the trial it was admitted by appellants that the J. L. Cannon Company was a corporation; that J. L. Cannon was secretary thereof; that J. L. Cannon Company was indebted to appellee in the sum of $1,156.74; that Mrs. E. I. Cannon was the duly appointed and acting administratrix of the estate of J. L. Cannon, deceased; that J. L. Cannon Company was adjudged a bankrupt in the United States District Court on September 13, 1926. The records in the county clerk’s office of said county disclosed that the officers of the J. L. Cannon Company failed to file the annual report of the J. L. Cannon Company required by said sections of the statute.
■ At the conclusion of 'the testimony the trial court peremptorily instructed the jury to return a verdict in favor of appellee against Mrs. E. I. Cannon, as administratrix of the estate of J. L. Cannon, for the amount of the alleged indebtedness, but submitted to the jury the question of the liability of Mrs. E. I. Cannon individually . The jury returned a verdict for the full amount of the alleged indebtedness in favor of appellee against Mrs. E. I. Cannon individually.
An appeal has been duly prosecuted to this court from both judgments.
In order to recover the statutory penalty against the estate of J. L. Cannon, deceased, it was necessary to prove that J. L. Cannon Company was a corporation; that the officers of the corporation failed to file an annual report in the office of the county clerk of Sevier County during the years 1925 and 1926, and that during the period of such default the indebtedness was incurred, and that during the period of neglect to file said report J. L. Cannon was secretary of said corporation. All the facts, except the failure or neglect of the officers to file the report,'were either admitted in the pleadings or in the course of the trial. The records of the clerk’s office disclosed that the report was not filed by the officers of the said corporation during the years 1925 and 1926, the latter year being the year the account sued upon was incurred. This being true, the court correctly instructed the verdict against Mrs. E. I. Cannon, as administratrix of the estate of J. L. Cannon, deceased.
The only additional fact necessary to establish individual liability for the indebtedness against Mrs. E. I. Cannon was to show that she was president of the corporation during the year 1926, which was the period the debt was incurred, and that the officers of the corporation failed or neglected to file the report in the county clerk’s office, required by § 1715 of Crawford & Moses’ Digest. This issue was submitted to the jury, but appellant con tends that it was done without any competent evidence to warrant its submission. During the progress of the trial testimony was introduced showing that the stock owned by D. C. Goff in said corporation was sold and reissued to Mrs. E. I. Cannon on October 6, 19’24. Five checks were also introduced in evidence, drawn by Mrs. E. I. Cannon, to which she signed the name of her husband, and these checks were charged to the account of J. L. Cannon Company. Objection was made to the introduction of the checks, but we think they were admissible as a circumstance tending to show that she exercised authority in the operation of the corporate business in an official capacity.
The franchise tax returns of 1925 and 1926, made to the Railroad Commission of Arkansas by J. L. Cannon, as secretary of the J. L. Cannon Company, showed that Mrs. E. I. Cannon was president of said corporation. Appellant objected to the introduction of the authenticated copies of these returns on the ground that they were merely ex parte affidavits. Certified copies of these returns are made competent evidence in any court of this State with like effect as the originals thereof, by act 238 of the Acts of the General Assembly of the State of Arkansas of 1921. Section 1 of said act is as follows:
“ Copies of ian3r record, book, report, paper or other document on file with, or of record in, the office of any public officer or commission of the State, or of any county officer, or any excerpts from such record, book, report, paper or other document, when duly certified by the officer or the secretary of the commission in whose control such record, book, paper or other document is found, shall be received in evidence in any court of this State with like effect as the originals thereof. ’ ’
Although Mrs. E. I. Cannon denied that she was president of the corporation or that she had ever had anything to do with it or its affairs, this certificate was some substantial evidence tending to show that she was president of the corporation. during the period it defaulted, through its officers, in making its report to the county clerk, and during the period the indebtedness sought to be recovered in this suit was incurred. We think it, together with the checks issued by her and cashed out of the corporate funds, was sufficient evidence to send the issue of whether she was president to the jury. The jury found that she was president of the corporation, and, since the verdict is supported by some substantial evidence, appellant is bound by the verdict.
No error appearing, the judgment is affirmed. | [
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George Rose Smith, Justice.
The appellant was charged' with the crime of sodomy, found guilty, and sentenced to ten years imprisonment. He argues five points for reversal.
I. On complaint of the prosecuting witness, Atwell was arrested within a few moments after the commission of the offense, taken to police headquarters, and interrogated in the presence of several officers. He insists that the court erred in allowing the State to introduce an admission of guilt that was assertedly made in the course of the questioning.
We find no error. The trial judge, in compliance with the rules announced in Jackson v. Denno, 378 U. S. 368 (1964), first heard the witnesses in chambers and made a finding that the confession was voluntary. There is ample evidence to support that conclusion. One of the police officers present during the interrogation was the accused’s brother. That officer’s failure to testify at the trial is a persuasive indication that the accused’s constitutional rights were not infringed. Moreover, the de fendant admitted on cross-examination that he was informed of his rights and that thereafter he did make an admission of guilt.
II. There is no merit in the contention that the prosecuting witness should not have been permitted to testify that Atwell had served a term in the penitentiary upon a conviction for rape. Atwell’s counsel had already told the. jury during their voir dire examination that his client had been in the penitentiary. The testimony was competent, as it tended to show that the prosecuting witness participated in the crime from fear and therefore was not an accomplice. Finally, the correctness of the court’s ruling is not in issue on appeal, because no exceptions were noted. Stockton v. State, 239 Ark. 228, 388 S. W. 2d 382 (1965).
III. We cannot sustain the contention that the ten-year sentence fixed by the jury is excessive. The statute provides a maximum penalty of twenty-one years. Ark. Stat. Ann. § 41-813 (Repl. 1964). With respect to the argument now being made we have said: “If the testimony supports the conviction for the offense in question and if the sentence is within the limits set by the legislature, we are not at liberty to reduce it even though we may think it to be unduly harsh.” Osborne v. State, 237 Ark. 5, 170, 371 S. W. 2d 518 (1963).
IV. It is asserted that after the jury had returned its verdict the trial judge made remarks derogatory to the accused. Perhaps so, hut whatever the court may have said was not made a part of the record on appeal and is therefore not before us. We have, however, examined the trial proceedings with care and find nothing to indicate any lack of fairness or impartiality on the part of the presiding judge.
V. In a motion for a new trial on the ground of newly discovered evidence counsel merely stated that four named witnesses “will he in a position to testify as to the circumstances existing” at the time and place of the offense. Since the motion does not state the substance of the witnesses’ expected testimony it fails to meet the requirement that the newly discovered proof be of such a nature that it probably would change the result reached at the first trial. Bixby v. State, 15 Ark. 395 (1854). Hence the motion was properly denied.
Affirmed. | [
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Smith, J.
The Sovereign Camp Woodmen of the World issued a beneficiary certificate to Edd Wooten, ■which, at the time of his death, on October 25, 1926, was worth $1,173. Ida Belle Wooten was the wife of the insured at the time of the issuance of the certificate, but, in 1920, she obtained a divorce from the insured, and was thereafter deprived of her status as. a beneficiary under the constitution of the insurance order, which provided that, in the event of a divorce, the insured spouse should designate another beneficiary, failing which the insurance should be payable to the next of kin of the insured.
Eloise Wooten, an adopted child of the insured, was the next of kin at the time of the insured’s death, but, two days, before the occurrence of that event, a change of beneficiary was indorsed on the certificate, whereby Thomas F. Wooten, a nephew of the insured, was designated as the beneficiary.
In the suit brought to recover the value of the certificate the insurer filed an answer admitting its liability to the true beneficiary, and it was permitted to pay that sum into court, whereupon it was discharged, and the litigation proceeded between the adopted -child and the nephew.
The court below found the fact to be that, at the time of the alleged change of beneficiary, the insured did not have the mental capacity to perform that act, and judgment was rendered in favor of the daughter for the fund in court, and this appeal is from that decree.
The testimony showed beyond question that the insured was devoted to his adopted child, although she lived with his divorced wife, and that he kept in constant touch with his daughter, about whose welfare he was very solicitous, and that he was especially anxious that his daughter should have an education and should be taught music.
The insured had a stroke of apoplexy about a year' before his death, which left him an invalid, and thereafter until his death his nephew, Thomas, was kind to him in many ways. The insured had a second stroke on October 12, and was taken to a hospital at Crossett two days later.
Dr. Kimbro testified that he was the insured’s physician after the insured was first stricken, and that he saw insured two or three times every week during the year prior to the insured’s death, and that he observed a marked weakening, both mentally and physically. After the second stroke the insured was paralyzed on one side; he could not articulate, but made motions with his. hands to indicate his wants; he could not speak, and would cry when he attempted to do so, and was in no condition to be interviewed. The prognosis was very unfavorable, as there was a lesion of the brain tissue, and it was the opinion of the witness that the insured would live only a few days after being taken to the hospital, and it was also the opinion of the witness that the insured was not normal mentally, and was incompetent to transact any business when carried to the hospital on October 13.
Dr. Spivey, the physician in charge of the hospital, testified that he saw the insured two or three times each day after the insured was. brought to the hospital, and that at no time was the insured competent to transact any business; that he suffered a third stroke on October 21, after which he was conscious only of pain and thirst and hunger, and died on October 25.
The change of beneficiary was made October 23, and the persons then present testified that the insured was conscious, and fully realized what he was doing when he signed the change of beneficiary by mark. The insured was unable to write on account of his condition, but could and did touch the pen, and in this way made his mark, which was witnessed by two of the persons present. Two physicians, who did not see the insured after his stroke, testified, in response to hypothetical questions, that the insured was. not necessarily incompetent mentally, even after the last stroke, to transact business. There was certain other testimony of non-expert witnesses on each side of the question; but, without setting out the testimony any further, we announce our conclusion to be that the finding of the chancellor does not appear to be clearly against the preponderance of the evidence.
Only one question of law is raised, and that is the competency of Drs. Kimbro and Spivey to testify as witnesses, it being insisted that their testimony was inadmissible under § 4149,' C. & M. Digest, which provides that “no person authorized to practice physic or surgery * * * shall be compelled to disclose any information which he may have acquired from his patient while attending him in a professional character, and which information was necessary to enable him to prescribe as a physician or (do) any act for him as a surgeon * *
Drs. Kimbro and Spivey both testified that the opinions expressed by them were based upon information obtained while waiting on the insured in a professional capacity.
The- objection to the admissibility of this testimony may be disposed of by saying that in the “application for membership and participation in the beneficiary fund” made by the insured, appears this statement: “I further waive for myself and beneficiaries the privileges and benefits of any and all laws which are now in force or may hereafter "be enacted in regard to disqualifying any physician from testifying concerning any information obtained by him in a professional capacity.”
In the case of National Annuity Assn. v. McCall, 103 Ark. 201, 146 S. W. 125, 48 L. R. A. (N. S.) 418, Dr. Pringle testified that he had attended the insured, whose death was there in question, before and at the time of his death, as his family physician, and in this way acquired information as to the cause of the insured’s death, which he thought he should not disclose. The court refused to require the witness to answer, upon the ground that this information was privileged under the statute referred to. In holding that there was error in refusing to permit the witness to state from what cause the insured had died, inasmuch as the application had waived the benefit of the statute, it was here said:
“This statute accords the privilege to a patient of objecting to disclosures of matters communicated to or information obtained by a physician as such, and this privilege does not cease with the death of the patient. But this privilege may .be waived by the patient himself and after his death by his representative; and so, tó'o, where one occupies á relation to the deceased by reason of a contract, such as is involved in this case, wherein he is made the beneficiary of a life insurance policy, he has, by virtue of this statute, a right to object to testimony relative to the communications therein' named as privileged, and he has also the right to waive this privilege conferred by it. 4 Wigmore on Evidence, $ 2387; Penn Mut. Life Ins. Co. v. Wiler, 100 Ind. 92, 50 Am. Rep. 769. A person may also,, in his written application for insurance, waive the right to object to the testimony of a physician as to information acquired while attending as such.”
The testimony of Drs. Kimibro and Spivey was therefore competent, and, as the finding of the court below does not appear to be contrary to the preponderance of the testimony, the decree must be affirmed, and it is so ordered. | [
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Hart, C. J.,
(after stating the facts). The order appealed from was made on an adjourned day of the same term of the court at which a confirmation of the sale of the lands in which T. A. Pope had an interest was made. Hence the court had jurisdiction in the matter. Wofford v. Young, 173 Ark. 802, 293 S. W. 725.
The record shows that T. A. Pope owned the fee simple title to an undivided one-fourth interest in 1,360 acres of land which were embraced in the mortgage foreclosed. The consideration recited in his deed was $4,000, and the deed was executed to him on the 30th day of March, 1901, which was 27 years ago. Lady Pope, the wife of J. H. Pope, does not appear to have signed the mortgage. The mortgage was given to secure an indebtedness of $30,000 of her husband. This tends to show that the interest of T. A. Pope in said lands was worth much more than the sum of $140 for which the lands were bid in at the foreclosure sale by the plaintiff. In addition thereto, the mortgage executed by T. A. Pope contains an express exemption of an interest in said lands to the extent and value of $4,000. This indicates that the parties at the time believed that the interest of T. A. Pope in said lands was worth more than $4,000, and the legal effect of the clause was to reserve in said T. A. Pope the sum of $4,000 at the' foreclosure sale of his interest in said land. In other words, if the lands did not sell for more than $4,000, no legal sale of them could 'be made under the mortgage, for T. A. Pope had expressly exempted from sale his interest to the value of $4,000.
While this court has held that mere inadequacy of price will not justify a chancery court in refusing to approve a sale and deprive a purchaser of the benefits of his purchase, yet, if a purchaser has been guilty of any unfairness or has taken any undue advantage, the sale will be regarded as fraudulent, and the party injured will be permitted to set aside the sale. Great inadequacy in price requires only slight circumstances of unfairness in the conduct of the party benefited by the sale to raise the presumption of fraud. Stevenson v. Gault, 131 Ark. 397, 199 S. W. 112, Ann. Cas. 1918E, 433; Moore v. McJudkins, 136 Ark. 292, 206 S. W. 445; Chapin v. Quisenberry, 138 Ark. 68, 210 S. W. 641; and Wofford v. Young, 173 Ark. 802, 293 S. W. 725. In Schroeder v. Young, 161 U. S. 334, 16 S. Ct. 512, 40 L. ed. 721, the rule is stated that, where there is great inadequacy of price, coupled with circumstances tending to show that the land was sold in such manner that its full value could not be realized, the court is justified in setting aside the sale. Here there was notice, by the terms of the mortgage itself, that T. A. Pope had excepted from its provisions an interest in the land to the value of $4,000. Hence, under the circumstances described 'by the record, the chancellor was justified in setting aside the sale of the interest of T. A. Pope in said land; and it was his duty to have done so if proper notice of the application had been made.
Counsel for appellant seek to obtain a reversal of the order setting aside the sale on the ground that no notice of the application to vacate the sale was given to the Union & Planters’ Bank & Trust Company, under the rule laid down by this court in Miller v. Henry, 105 Ark. 261, 150 S. W. 700, and the general rule announced in an annotation to that case in Ann. Cas. 1914D, 758. It is true that, under the authorities there announced, notice should have been given to the purchaser of the application to vacate the sale after it had been confirmed. But, under the 'circumstances, this action of the court is only, in general, reversible error, and was not a prerequisite to the exercise of jurisdiction by the court. It is well settled in this State that a court has the power to set aside or modify its decrees at any time during the term, and this rule applies to an adjourned day of the term. Wofford v. Young, 173 Ark. 802, 293 S. W. 725.
Under the circumstances of this case, however, we do not think this error of the chancery court constitutes reversible error. The Union & Planters’ Bank & Trust Company was the plaintiff in the case, and, as such, was a party to the suit before it became a purchaser at the foreclosure sale. It does not make any difference whether T. A. Pope was legally served with summons in the mortgage foreclosure suit or not. He became a party to this proceeding by moving to set aside the sale under the foreclosure decree. While no notice was given to the Union & Planters’ Bank & Trust Company of the application of T. A. Pope to set aside the sale under the foreclosure decree and the confirmation thereof, the court did set aside said sale, and had the jurisdiction to do so. An appeal has been taken only from the action of the court in setting aside the sale, and the appeal to this court has the effect of entering the appearance of the Union & Planters’ Bank & Trust Company to the application to set aside the sale. Having appealed to this court, the plaintiff became a party to the proceeding, and must follow the cause to its conclusion or take the consequences. Hodges v. Frazier, 31 Ark. 58; Ben jamin v. Birmingham, 50 Ark. 443, 8 S. W. 183; Walker v. Walker, 147 Ark. 376, 227 S. W. 762; and Lingo v. Swicord, 150 Ark. 384, 234 S. W. 264.
Under the views we have expressed above as to the rights of T. A. Pope under the reservation or exception in his mortgage, he would have been bound to prevail if notice had been given to the plaintiff of his application to set aside the sale. Hence no useful purpose could be served by reversing the order setting aside the sale and remanding the cause, with directions to the chancery court to set aside the sale upon the facts established. This would be an empty victory for the plaintiff, and could result in no useful purpose.
The costs in a chancery case are within the discretion of the court, and it is our opinion that the costs of the appeal should be paid by the plaintiff, who is the appellant in the ease.
Argument is made by counsel for appellant as to estoppel which should apply to Lady P. Pope. We do not deem it necessary to discuss or to determine this issue, for it is not involved in this appeal. No appeal was taken by Lady P. Pope, and the appeal of the plaintiff does not in any wise affect her rights in the premises. The record expressly shows that the plaintiff only appealed from the decree of the chancellor in setting aside the foreclosure sale in so far as it affected the interest of T. A. Pope.
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Humphreys, J.
Appellee instituted suit in ejectment in the circuit court of Crawford County against appellant to recover lands which he had contracted in writing to sell him for $880, payable as follows: $280 payable November 1, 1925; $300 payable November 1, 1926; $300 payable November 1, 1927. It was alleged in the complaint that appellant failed to pay the notes in 1925 and 1926, but made default, thereby forfeiting his right to possession of the lands.
Appellant filed an answer, admitting the execution of the contract and a failure to pay the notes,, except a small amount thereon, due to crop failure the first year and overflow the second, land interposing as a defense against the alleged forfeiture of his right to the possession of the land the following paragraph in the contract:
“The party of. the first part (appellee) agrees to let the party of the second part (appellant) have more time on notes which he can not meet.”
On the day of the trial appellee was permitted to file an amended complaint, alleging that, in the spring of 1926, the contract of sale and purchase was abrogated by au oral 'agreement to the effect that, if appellant failed to pay the notes in 1925 and 1926, with interest, he would pay rent for the use of the lands and surrender possession thereof to appellee. Appellant filed no pleading to the amended complaint.
The cause was •submitted, upon the pleadings and testimony adduced by the respective parties, resulting in a verdict and consequent judgment in favor of appellee for the possession of the lands, from which is this appeal.
In the course of the trial appellant objected and •saved an exception to the introduction, of testimony establishing the relationship of landlord and tenant between the parties. Appellee testified, and his testimony was not contradicted, that, in the spring of 1926, he went to see appellant, and told him that he would not permit him-to retain possession of the land, as he had failed to pay the note due in 1925, and if appellant was not able to pay ¡any more he would have to turn the land back, as it was not right for him to keep the place and not pay the first note, as he had agreed to. Whereupon appellee agreed to take the land back, with the understanding that appellant might cultivate the land in 1926, and that, if he could not pay all of the notes due in the fall of 1926, he would pay crop rent and deliver up the possession of the premises at the expiration of the year to appellee. Appellee further testified that appellant failed to pay the notes or rent.
The testimony tended to show that appellant had cleared up several acres of the land, and had planted some strawberries on a part of it.
Appellant contends for a reversal of the judgment because the court permitted appellee to file an amended complaint changing the nature of the action from one in ejectment on account of an alleged-forfeiture of his right to possession under the contract, to one of unlawful detainer, and in allowing appellee to introduce proof of an oral agreement in support of the allegations of his amended complaint.
The cause was submitted to the jury upon the issue tendered in the amended complaint of whether the contract for sale and purchase of the lands had been superseded by the oral agreement establishing the relationship of landlord and tenant between the parties.
When appellee failed to demur or move to strike out the amended complaint, and consented to proceed with the trial of the cause, he waived the right to object to a change of the issues in the action and to object to the introduction of testimony responsive to the issues tendered iby the amended complaint.
The court did not err in admitting the' testimony showing the relationship of landlord and tenant, and in sending the case to the jury upon the issue tendered by the amended complaint.
The judgment is affirmed. | [
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Humphreys, J.
Appellee brought this suit against appellants in the circuit court of Randolph County for a balance of $1,765 and interest alleged to be due upon a note executed by them to her on February 9, 1924.
Appellants filed an answer to the complaint, admitting the execution of the note in part payment for an agency to sell gas and oil products for the Pierce Petroleum Corporation, but denying additional liability thereon, upon the ground that she procured the note from them through the following- fraudulent misrepresentations: (1) That she had an agency with the Pierce Petroleum Corporation to sell its oil and gas in certain territory in Randolph and Clay counties, in this State. (2) That she earned commissions on the sale of s'aid products in the sum of $500 per month. (3) That she had no overhead expenses. (4) That the corporation paid the freight on said products shipped to the agents.
The cause was submitted on the pleadings, the testimony adduced at the trial, and the instructions of the court, Avhich resulted in a verdict and consequent judgment against appellants for $2,131.90, from which is this appeal.
Appellee had been the agent at Pocahontas for a number of years for the Pierce Petroleum Corporation and had built up a gas and oil business. As compensation she received a commission upon her sales. Several parties Avanted to purchase her agency, among them appellant, Kern L. Hall. He agreed to pay her $2,000 if she would procure the agency for him. Pursuant to the agreement they came to Little Rock, and she resigned and he Avas appointed, receiving a contract from the corporation like the one she had. He paid her $135 and, when they returned to. Pocahontas, he executed a note for $1,865 covering the balance of the purchase money for the agency, which was signed by his mother, Mrs. Flora A. Hall, as surety. The note', was due twelve months after date. He was then checked in as its agent by the corporation, and operated the agency until October 23, 1925, at which time he was discharged as a result of a disagreement. In April, 1924, after operating the agency over two months, he voluntarily paid $100 on the note. The testimony responsive to the issue of fraud in the procurement of the note was conflicting. In submitting the issue of fraud to the jury the court also gave the following instruction, over the objection and exception of appellants:
“If you find at the time, or prior to the time, the $100 payment was made on the note by defendant, that said defendant, Kern L. Hall; knew, or should have known, of the alleged fraud practiced upon him, such $300 payment would amount to a ratification of the contract, and you should find for the plaintiff.”
Appellants insist that this instruction was inherently wrong, because it ignored their right to affirm the contract and claim damages by way of recoupment when sued for the purchase price of the agency. This was an established agency, and, although appellee had no express authority to assign her written contract, the corporation recognized her right to choose her successor, by and with its consent. The method adopted was by resignation and appointment of the party she selected and recommended. ■ Under these circumstances we think the transfer and sale of the agency analogous to the sale of property. • In sales of property the rule is that the defrauded party can affirm the contract and, when-sued for the purchase money, may recoup by way of damages. Kirby v. Young, 145 Ark. 507, 224 S. W. 970, 228 S. W. 53; Ives v. Anderson Engine & Foundry Company, 173 Ark. 112, 292 S. W. 111. Under this rule it was error for the court to give instruction No. 2. The case should have been sent to the jury upon the issue of fraud alone.
On account of the error in giving said instruction the judgment is reversed, and the cause is remanded for a new trial. | [
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McHaney, J.
Appellant brought this action against appellee to recover ion four promissory notes of $200 each, two ’dated April 21, 1925, payable three and five months after date, and two dated April 30, 1925, payable six and seven months after date, at the Farmers’ State Bank, Conway, Arkansas, with 10’ per cent, interest from date until paid. ' These notes were made payable to A. D. Harmon, an employee or salesman for the Home Sales Company, a Missouri corporation, and by him indorsed and delivered to J. F. Cox, president of the Home Sales Company, who in turn'transferred them to appellant before maturity, in due course, as security for a loan by appellant to Cox. The consideration for the notes was the payment of $1 each upon 800 “Home Emergency Cases,” consisting of a small wooden cabinet and a quantity of medicine contained in a number of bottles, with the initials on each bottle “H.E.C.,” presumably representing- the words “Home Emergency Case,” and on each bottle is “Registered U. ¡S. Patent Office.” Appellee at the same time entered into a contract with the Home Sales Company through said Harmon, the pertinent parts of which are as follows:
“In consideration of the payment and advance of one dollar each upon eight hundred home emergency cases, the receipt of which is hereby acknowledged, the Home ’Sales Company agrees to furnish to the undersigned special dealer that number of home emergency cases, at $5 each, f. o. b. cars Kansas City, Missouri, during a period of one year from May 25, 1925, as they shall be ordered by him or Ms authorized agents, in any quantity desired, not to exceed the number specified above, upon payment of the balance of four dollars for each case ordered; the said dealer shall not be bound to pay this four dollars upon any case until he orders it delivered to him. The home emergency cases herein contracted for shall be sold by said dealer or his representatives in the following district: County, Lonoke; State, Arkansas. Number of cases, 800. We agree during the specified period not to place the home emergency cases on sale with any other dealer in the said district, and the said dealer on his part agrees, not to offer them for sale outside this district without our written consent.”
He was able to sell only six of the home emergency cases, for which he paid the balance due of $4 on each case. There is practically no dispute in the evidence. The proof on the part of appellant shows that it acquired the notes for value, before maturity, and without notice of any defects or infirmities therein, or of any defense the maker of said notes might have against the payee. Appellant had taken other notes from -Cox under similar conditions, and these notes had been paid by the makers. The Home Sales Company was not a customer of appellant bank, and it had no business dealings with it, neither was Harmon a customer thereof, but Cox had been a customer of said bank for some two years, and was known to appellant as a reputable, responsible business man. Neither the cases nor the medicine therein was patented, but the trade-mark on the bottles, “H.E.O.” had been registered in the U. S. Patent Office as a trade-mark. Appellee testified that, at the time he gave Harmon the notes, 'Cox was with him, and showed .him how much money he could make out of the deal; that he understood that he was to give the notes and pay the company $4 per case f or the medicine as he sold it, and had the exclusive right to sell same in Lonoke County; that Harmon agreed to help him sell the medicine, and he was to pay the notes out of the proceeds of the sales thereof; that he told Harmon he was no salesman, and he said he would help- him sell it, but that he has not seen Harmon since; that he has not made any money out of the contract. On August 21,1925, appellee wrote appellant that his agreement with Harmon was that he was to sell the medicine before he paid all the notes, and that he had not sold any of the medicine yet, but he believed-he could sell it later in the crop season, and said: “Now if you will have patience will pay when I can. I have got me a new car, and I am going to start out to try again to sell it soon.”
The case was submitted to the jury, and a verdict was returned in appellee’s favor.
We think the court erred in submitting the case to the jury at all. Appellant requested the court to instruct the jury to find for it, which the court refused to do, and this is assigned as error-. In our view of the case, appellant acquired the notes in due course for value and before maturity, without notice of any defects or infirmities therein. 'Section 52 of the Negotiable Instrument Law, § 7818, C. & M . Digest, defines a holder in due course as follows: “A holder in due course is a holder who has taken the instrument under the following’ conditions: (1) That it is complete and regular upon its face; (2) that he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact; (3) that he took it in good faith and for value; (4) that at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.”
This was the law in this State prior to the Negotiable Instrument Act. Bothwell v. Fletcher, 94 Ark. 100, 125 S. W. 645; Holland Banking Co. v. Booth, 121 Ark. 171, 180 S. W. 978. Section 56 of the Negotiable Instrument Act, being § 7822 of C. & M.'Digest, provides what is necessary to constitute notice of defect as follows: “To constitute notice of an infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument-amounted to bad faith.” This was likewise the law in this State prior to the Negotiable Instrument Act.
We have examined the testimony carefully, and fail to find anything therein that brings to appellant actual knowledge of any infirmity in the instrument,. or defect in the title of 'Cox thereto, or knowledge of any such facts on the part of appellant that would constitute his action in taking the instrument bad-faith. Undoubtedly, as between appellee and Harmon and Cox, failure of consideration might have been successfully pleaded, as well as fraud and misrepresentation in the procurement thereof. But, as between appellant and appellee, there must be actual knowledge of the defective title or infirmities in the instrument as defined by the statute, or knowledge of such facts as would put him on notice. It is true that appellant had taken other similar notes from Oox in the course of its business dealings with him, but it is shown that such other notes had been satisfactorily taken care of.
The principal defense relied on by appellee is that the notes were given for the purchase of a patented article or patent right territory, and are void because the notes did not show on their face that they were executed for such consideration, and it is claimed that they are void as being in violation of §§ 7956-7958, C. & M. Digest, which are as follows:
“Section 7956. Any vendor of any patented machine, implement, substance, or instrument of any kind or character whatever, when the said vendor of the same effects the sale of the same to any citizen of this State on a credit, and takes any character of negotiable instrument in payment of the s'ame, the said negotiable instrument shall be executed oh a printed form, and show upon its face that it was executed in consideration of a patented machine, implement, substance or instrument, as the case may be, and no person shall be considered an innocent holder of the same, though he may have given value for the same before maturity, and the maker thereof may make defense to the collection of the same in the hands of any holder of said negotiable instrument, and all such notes not showing on their face for what they were given shall be absolutely void.
“Section 7957. The foregoing section shall also apply to vendors of patent rights, and family rights to use any patented thing of any character whatever.
“■Section 7958. Any vendor of any patented thing of any character, >or any vendor of any patent right or family right to use any patented thing of any character whatsoever, who shall violate the provisions of § 7*956, shall, upon conviction, be punished by a fine of not more than three hundred dollars.”
These sections have no application .to the notes in controversy, for the reason that they were not given for “any patented machine, implement, substance, or instrument of any kind or character whatever. ’’ The most that can be said -of the home emergency cases, for which the notes in controversy were given, is that the bottles contained in the case had. a trade-mark on them which had been registered in the U. S. Patent Office. An article bearing- a trade-mark which has -been registered in the patent office is not a patented article, within the meaning of the aforesaid statute, and we do not feel that we. can extend the provisions of the statute to cover a case not clearly included within the language of the legislative enactment.
In the recent case of Green v. Jones, 168 Ark. 423, 270 S. W. 515, the court held that the above sections of the statute did not apply to the lease of a patented article, and that the statutes are both penal and criminal, and must be strictly construed. It is there said:
“The statute is both penal and criminal. For its violation the penalty of the forfeiture of the agreed purchase price of the article sold is imposed, and the note or notes executed for the purchase price which do. not conform to the requirements of. the statute are rendered void in the hands of an innocent purchaser, and, in addition, a fine of $300 may be- imposed for a violation of the statute. As the statute is penal and criminal, it must, for both reasons, be strictly construed.”
The court, in that case, quoted from Black on Interpretation -of Laws, § 114, page 286, in support of its construction that the. statute must be construed strictly. However, we are of the opinion that it does not require a strict construction of the statute to say that an article bearing -a trade-mark which has been registered in the U. S. Patent Office does not come within the provisions -of the above statute, and has no application thereto. Neither does the statute cover notes given for the pur chase of patent-right territory. It is the sale of a specific article or thing which has been patented that is prohibited by the statute under the conditions named.
We therefore conclude that the court erred in submitting the case to the jury, and that appellant’s request for ia peremptory instruction should have been given. The .judgment of the circuit court is therefore reversed, and judgment will be entered here for appellant for the amount of the notes and interest. | [
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J. Fred Jones, Justice.
E. M. Ott and J. W. Eay, as partners, doing business as Crawfordsville Dehydrator Company, brought suit in the Greene County Circuit Court against Wonder State Manufacturing Company for damages sustained by Ott and Ray because of the collapse of a grain bin they purchased from Wonder State. This appeal by Ott and Ray, is from a judgment entered on a jury verdict in favor of Wonder State.
The appellants, Ott and Ray, were engaged in the business of manufacturing alfalfa pellets, and the ap-pellee, Wonder State Manufacturing Company, was engaged in manufacturing and selling metal seed houses or bins. In early 1965, the appellants purchased from the appellee two 46% ton bins to be used for the purpose of storing the processed alfalfa pellets. These bins, when erected in single units, were ten by twelve feet in dimension with ten foot vertical side and end walls. The bottom of each bin or unit was of hopper like design in the form of an inverted pyramid and the entire unit was elevated on steel posts in such manner that trucks could be driven underneath for loading from the hopper. The two bins purchased by the appellants were put together in such manner that they actually constituted a single building or bin 12 feet wide and 20 feet long with two loading hoppers, one at each end. One bin was first erected without its north wall and the second bin, without a south wall, was added to the first bin on the north side of the first bin, thus constituting the single bin without a partition between the two units. This single bin with the two hoppers was supported on six steel posts set in concrete. The manufactured pellets were introduced into the bin by a pneumatic process through a tube or pipe inserted through a hole that had been cut near the top or eave in the side of the second unit, or north portion of the bin. The pellets were then allowed to flow by gravity to the south and other portions of the bin. Appellants advised the appellee of the purpose for which the bins were being purchased and the appel-lee assured appellants that the bins were suitable for the intended use.
In June 1965, the northwest corner of the bin buckled, and the north hopper of the bin collapsed, under the weight of the pellet content and in appellants’ suit for damages they allege the collapse was caused by the defendant in improperly designing the building for its intended use, and that such failure constituted a breach of warranty made by appellee to the appellants. Appel-lee answered by general and specific denials and alleged, among other things, that the collapse of the bin and hopper was caused by the appellants overloading it. There is no question that the collapse occurred because of the weight of the contents of the bin, so the actual question at the trial was whether the fault lay with the appellee in design, construction, or warranty, or whether the fault lay with the appellants in the use of the bin. On appeal to this court, the main question involves the sufficiency of the evidence, and about the only law involved in this case is the law of gravity.
Appellants designate two points upon which they rely for reversal, as follows:
“The court erred in permitting witness to testify, over appellant’s objection, as to improper loading of bin.
The court erred in permitting the introduction of the testimony and the graphic illustration by appel-lee’s expert witness, Tom Bailey, with reference to the maximum pile of alfalfa pellets which could be introduced into the seed house; and in failing to strike the testimony of Tom Bailey at appellant’s request. ’ ’
We find no merit in either of the points designated by appellants. From appellants’ own evidence it is clear that three holes had been cut through the wall of the double unit bin for the purpose of introducing pellets into it. The first hole was approximately 44 inches from the bottom of the bin and from the top of the hopper portion of the bin. This hole was approximately 29 inches south of the center line of the bin and was over the north portion of the hopper constituting the bottom of the south unit of the bin. The second hole was of no significance, but the third hole, and the one being used for the introduction of pellets, was some 104 inches from the bottom of the bin and from the top of the hopper portion of the bin. This hole was approximately 44 inches north of the center line of the bin and was over the south portion of the hopper constituting the bottom of the north unit of the bin. At least 89.41 tons of the pellets had been blown into the north end of the bin through this third hole and these pellets were still in the bin when the north side of the bin and the north hopper collapsed. As to the weight of the pellets in the bin at the time of the collapse, appellant Ray testified as follows:
“Q. How much of it [alfalfa pellets] were you able to salvage?
A. I have got some tickets. We weighed it all. I
believe, looks like 168,820 pounds.
# # *
A. We estimated there was an additional five tons we couldn’t recover.”
On cross-examination Mr. Ray testified:
“Q. Do you recall, offhand, the weight of the pellets that remained in the hopper that stayed up?
A. No, I do not. I recall, I was a little bit, amazed me, there were — I don’t recall, exactly, I remember, more in there than I thought there would be.
# # #
Q. Do you have anything here you could look at to determine the weight of the pellets that remained in the hopper?
A. No, sir. I don’t believe so.
Q. Do you recall, it was something between 19 and 20 ton?
A. No, sir. I don’t recall, but it is possible that is right.
Q. The amount left in the hopper and that recovered from the ground together weighed 168,820 pounds, figure you testified to earlier?
A. Yes, sir. That is correct.
Q. And you and someone from Wonder State estimated there was about six tons, that remained on the ground, could not be, be recovered?
A. I think we said five, five or six. ’ ’
According to appellant’s own testimony, when his lowest estimate of five tons of pellets that copld not be salvaged is added to the amount that was salvaged and weighed,, there was 89.41 tons of pellets in the entire bin when it collapsed. This was only 3.59 tons short of the weight both bins were designed to hold had they been erected as single and separate units. From appellant’s own testimony, and that of his own witnesses, the entire bin would have reached its pellet weight content capacity of 93 tons when the pellets had reached a uni form depth throughout the bin up to the first hole that had been cut 44 inches from the bottom of the bin. There is no question that all 'the pellets in the bin had been blown into it through the hole near the top of the side of the north unit or end of the bin and allowed to simply flow by gravity to the other areas of the bin. Appellant testified that at the time the north end collapsed, the bin had not been filled to the first hole on the south side. So we conclude, that from appellant’s own evidence and the undisputed physical facts deductible therefrom, the jury, by the application of its common sense to the laws of gravity, could have reasonably found that considerably more than 46% tons of pellets was in the north’ end or unit of the bin when it collapsed, and that it' was the excessive weight of these pellets that caused the north hopper and north end of the bin to collapse.
Appellee’s-Witness, Tom Bailey, not only testified as a qualified expert in the construction and erection of the type of bins involved here, he testified that he went into the collapsed bin and observed the pellets that remained in the south end of the bin and in the south hopper. He testified that the southeast corner of this south hopper had not filled up. Bailey also testified that the angle of repose for alfalfa pellets was 25 degrees and from the angle of repose of the pellets he observed in the south and undisturbed end of the bin and hopper, he estimated the distribution of the contents between the north and south halves of the bin to be 40% in the south end and 60% in the north end at the time of the collapse.
The only evidence offered as to statements made in the nature of express warranties, pertained to statements that a single bin would hold 46% tons of feathers and that the bins would be suitable for storing alfalfa pellets. It is obvious that the statement as to feathers simply meant that the bin could be completely filled with any substance so long as the total weight did not exceed 46% tons. There is no evidence in the record that the bins would not hold 46% tons of feathers or anything else, including 46% tons of alfalfa pellets. There is no evidence in the record that the bin was not suitable for storing alfalfa pellets, but there is substantial evidence in the record that appellants overloaded the north end of the bin with more than 46% tons of alfalfa pellets and that the north end of the bin collapsed under this weight. Many automobiles are designed as eight passenger automobiles and are sold as being suitable for safely transporting people, but certainly there is no warranty in the sale of such automobile that eight people can ride •safely in the front seat. There is substantial evidence in the record to sustain the verdict of the jury, and finding no error in the admission of the evidence, we affirm the judgment of the trial court.
Affirmed.
Fogleman, J., not participating. | [
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Holt, J.
Appellee, Esther Jeffers, and G-ordon Jeffers, her husband, joined in a suit under our guest statute against appellants, Irene Edwards and Chester Edwards, in the Franklin circuit court, Ozark district. Esther Jeffers sought to. recover $15,000-to compensate personal injuries alleged to have been received by her while riding in an automobile owned by appellants and which was overturned. Gordon Jeffers sought to recover $2,500 for loss of services, etc. When the case was reached for trial Gordon Jeffers took a nonsuit without prejudice.
Esther Jeffers alleged in her complaint that she was riding in appellants’ Buick automobile “at the specific request and insistence of appellants and for their benefit”; that Mrs. Edwards drove the car at a reckless, dangerous and unlawful rate of speed and that while attempting to negotiate a curve on the gravel highway, the car left the road, turned over in a ditch, and as a result she was seriously injured.
She further alleged that her injuries were caused by the willful and gross carelessness of appellants in that Irene Edwards operated the car at a caueless and unlawful rate of speed and- that her “action and conduct amounted to willful and gross negligence.”
Appellants denied every material allegation in the complaint and affirmatively pleaded that appellee, Esther Jeffers, was a guest of appellants at the time of the alleged injuries to her and is barred from recovery of damages under our “guest statute,” §§ 1302-1304 of Pope’s Digest.
A jury awarded Mrs. Jeffers damages in the amount of $3,500 and from the judgment on this verdict comes this appeal.
This cause was tried by the court below on the theory that Esther Jeffers was a guest in appellants’ car at the time of the alleged injury. This is clearly shown by the instructions given. Under § 1302 of Pope’s Digest a guest is denied the right to recover “unless such automotive vehicle was willfully and wantonly operated in disregard of the rights of the others.” Section 1303 provides ‘ ‘ The term guest as used in this act shall mean self-invited guest or guest at suffranee.” Section 1304 is similar in effect to § 1302 except under this provision certain persons there named are denied the right of recovery under any circumstances.
Appellee requested seven instructions, all of which the court gave. Appellants also requested seven instruc tions, four of which the court gave. In the instructions requested and given on behalf of the appellee, and those requested and given on behalf of the appellants, the trial court submitted but one issue and that was if appellee, Esther Jeffers, was being transported as a guest in an automobile operated by appellants and that appellant, Mrs. Edwards, drove and operated the car in a willful and wanton manner in disregard of the rights of Esther Jeffers, and such operation amounted to willful and wanton misconduct or negligence on the part of the driver of the car, and as a result Esther Jeffers was injured, then Esther Jeffers should recover. No instruction was requested by either party, and none was given by the court, on the theory that appellee was not a guest at the time of the injury, in which event it would have only been necessary for appellee, Esther Jeffers, to show that appellant, Irene Edwards, failed to use ordinary ca.re in the operation of the car at the time it turned over and injured appellee.
While appellee argues here that she was not a guest within the terms of the statute, supra, it is too late to raise that issue here for the first time. In Brown v. LeMay, 101 Ark. 95, 141 S. W. 759, this court said: ‘ ‘ The rule is well settled that when a cause is tried in the lower court upon a definite theory, it cannot for the first time be contended in this court that it should have been tried upon a different one.”
And in Southern Insurance Company v. Hastings, 64 Ark. 253, 41 S. W. 1093, this court said: “There was evidence to justify the instructions given. The appellant did not ask the court below to present to the jury the theory of the case it contends for here. Therefore, it cannot complain.”
The primary question presented, and the one decisive of this case, therefore, is: Were the injuries complained of by appellee, Esther Jeffers, occasioned by the willful and wanton negligence of Irene Edwards in the operation of the automobile?
The evidence is to the effect that appellee and appellants were good friends. The Edwards were visitors in the home of appellee in the morning before the accident in tlie afternoon. On Sunday afternoon, October 13,1940, while appellee, Esther Jeffers, was a guest in appellants’ Buick sedan automobile at a point on state highway No. 96 near Cecil, Franklin county, Arkansas, where the highway makes a sharp or “square” turn, Mrs. Edwai’ds, the driver, lost control of the car, it skidded on the gravel, left the highway and turned over on its side in a ditch and Esther Jeffers was injured. At the time of the accident, Mrs. Jeffers was riding on the front seat with Mrs. Edwards and Mrs. Edwards’ husband and their three-year-old daughter were on the back seat. Appellee estimated the speed of the car at between sixty and seventy miles per hour, “maybe faster.” Mrs. Edwards estimated the speed at between forty and fifty.
Mrs. Jeffers also testified: “A. I called Mrs. Edwards down two or three times and told her she was driving too fast and told her she couldn’t drive that fast over a gravel road with curves in it and I called her down two or three times. Q. What did you say to her in substance? A. I would say, 'Irene, you are driving too fast over this road, ’ and we would come to a sign and I would say, 'There is a curve or a turn,’ and I told her that this gravel was loose. Q. What would she say in response to you? A. She said she knew how to drive, I believe that’s what she said, and went on. Q. Did she slow down on these occasions? A. No, sir.”
. Grrady Bearden testified that he heard Mr. Edwards say to his wife: “You wasn’t driving less than seventy- or eighty.” And as to the extent of the damages to the car, Mr. Bearden further testified: “Q. Did you look at the automobile? A. Yes, I came back by that evening and looked at it. Q. Had they taken the car out of there? A. No, sir. Q. What did it do to the automobile? A. I couldn’t tell it did anything, only probably mashed the fender next to the ground. ’ ’
From the evidence, which includes a plat, it appears that Mrs. Edwards had negotiated, a sharp turn in the road a quarter of a mile before the point of the accident. It is our view that this testimony falls far short of that degree of willful and wanton misconduct on the part of appellant, driver of the car, that would warrant recovery under the statute, supra, on the part of Mrs. Jeffers, appellants’ guest.
In a recent case, Splawn, Admx., v. Wright, 198 Ark. 197, 128 S. W. 2d 248, wherein recovery was sought under the provisions of our guest statute, we said: “To show ordinary or simple neglig’ence is not enough, in fact it would not be sufficient if gross negligence were shown.
“This court has laid down the rule that in order to sustain a recovery under our guest statute, supra, the negligence' must be of a greater degree than even gross negligence, that it must be willful or wanton. In the recent case of Froman v. J. R. Kelley Stave & Heading Co., 196 Ark. 808, 120 S. W. 2d 164, the difference between gross and willful and wanton negligence is very clearly defined. We quote from the opinion as follows: ‘The Supreme Court of Vermont points out the distinction in the case of Sorrell v. White, 103 Vt. 277, 153 Atl. 359, in an opinion which comports with our own decisions on the question. Malcolm, in his work on Automobile Guest Law, quotes from that case as follows: “. . . Our inquiry must be directed to the difference between gross negligence and willful negligence. There is a distinction between them. Willful negligence is a greater degree of negligence than gross. . . . Willful negligence means a failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of anothex*. . . . Gross negligexxce falls short of being such reckless disregard of probable consequence as is equivalent to a willful axxd ixxtentional wrong. . . . Willful íxegligeixce ixxvolves the element of coxxduct equivalent to a so-called constructive intent. . . .” ’
“(Quoting with approval from a Louisiana case) Cases will rarely arise iix which it can be showix to a court’s satisfactioix that collisions or upsets of automobiles, with resxxltant injxxry to guests, occur because of ‘willful miseoxxduct’ of the operator. Those who operate automobiles should have (axxd when mentally normal, do have) a coxxscious desire to avert injury to themselves ixx such operatioxx, at least co-extexxsive with that not to injure their guests; and since to operate a car in a willfully negligent manner offers a threat to security from injury as great to the operator as it does to the guest, evidence to prove that grade of negligence should be unusually strong and convincing before the operator can and will be convicted of such.”
In the instant case, as has been indicated, the Edwards and the Jeffers were good friends. At the time of the accident, Mrs. Edwards’ husband and their three-year-old daughter were riding on the back seat. While unquestionably Mrs. Edwards was driving too fast and lost control of the car at the time she attempted to negotiate the curve where the car overturned, the physical facts surrounding the overturning of the car demonstrate that she had not attained the speed of seventy or eighty miles an hour, in the distance of a quarter of a mile from the, sharp curve that she had just negotiated, and certainly the undisputed fact that the ear had skidded on the gravel and turned over on its side in the ditch and sustained very little damage shows that it could not have been going* at the high rate of speed estimated by appellee’s witnesses.
Grady Bearden, the only witness who testified as to the extent of the damage to the car, said “I couldn’t tell it did anything, only probably mashed the fender next to the ground. ’ ’
It is not claimed that any of the other people in the car received any injury. If it could be said that Mrs. Edwards’ conduct in driving* the car amounted to gross negligence (and we do not think it did) still this is not sufficient to warrant recovery under the statute, supra.
We conclude, therefore, that the judgment must be reversed, and as the cause appears to have been fully developed, it will be dismissed. | [
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Conley Byrd, Justice.
In our original consideration of this ease, Ford Motor Co. v. Tritt, Admx., 244 Ark. 883, 430 S. W. 2d 778 (1968), we reversed the judgment entered in favor of appellee because there was no evidence in the record to show that the defect in the rear axle of the pickup truck was the proximate cause of the collapse of the wheel attached to the huh thereof.
On rehearing appellee contends that this court should not reverse a casé because of the exclusion of admissible evidence that was excluded at the request of the party claiming that the record is insufficient for lack of such proof. For authority appellee cites White v. Moffett, 108 Ark. 490, 158 S. W. 505 (1913), and Western Union Telegraph Co. v. Hearn, 110 Ark. 176, 161 S. W. 1025 (1913).
In the Western Union case the telegraph company claimed that Mrs. Hearn’s cause of action should fail because she did not allege and prove that she gave notice to the company within sixty days of her intention to claim damages. This was required by the blank upon which the message was sent. After pointing out that Mrs. Hearn’s offer of proof to show compliance with the sixty-day stipulation had been excluded by Western Union’s objection, it was there held that a party can not on appeal take advantage of a defect in the proof that was brought about by a ruling of the court made at his own request.
To the same effect, see Zainudin v. Meizel, 259 P. 2d 460, (Cal. Ct. App. 1953); Pataray v. Lee Hing, 37 Hawaii 14 (1944); and Union Pacific Ry. Co. v. Harris, 63 Fed. 800 (8th Cir. 1894). The reasoning behind the rule is stated in the Union Pacific case as follows:
‘ ‘... The defendant will not be allowed to thus take advantage of his own wrong, or the errors of the court induced on his own motion, and then compel the plaintiff to suffer the consequences. Such a proceeding would be the merest trifling with the court. ... If the rule were otherwise it would encourage and reward unfounded and groundless objections to the plaintiff’s evidence ...”
The record here shows that Dr. Cushman, except for an objection by appellants sustained by the trial court, would have testified that the wobble caused by the defective axle could ..have caused and would have caused the eventual breakdown of the wheel. The trial court, after examination upon voir dire, had ruled that Dr. Cushman was a competent expert to testify on the subject. We find that the exclusion of the proffered testimony was erroneous.
Under the authority of the Western Union and White cases, supra, it follows that the rehearing must be granted and the judgment of the lower court affirmed. | [
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Steele Hayes, Justice.
Appellant was charged with three counts of rape against three different victims and three counts of burglary committed in connection with those rapes. At trial the jury returned guilty verdicts on all six counts and appellant was sentenced to three consecutive life terms for the rape charges and sixty years for the burglary charges, the sixty years to run concurrently with the life terms. On appeal the appellant raises three points, none of which merits reversal.
Appellant first contends there was insufficient evidence to convict him for one of the rapes as his confession on that count was not corroborated by independent evidence. Ark. Stat. Ann. § 43-2115 provides that:
A confession of a defendant, unless made in open court will not warrant a conviction unless accompanied with other proof that such an offense was committed.
We stated in Bivens v. State, 242 Ark. 362, 413 S.W.2d 653 (1967), [t]he test of the correctness of the verdict is not whether there was sufficient evidence to sustain a conviction, but whether there was evidence that such an offense was committed or, in other words, “proof of the corpus delicti.”
Appellant stated in his confession he went to the victim’s house and found her in the bedroom. When she resisted he struggled with her and then raped her. The evidence showed the victim went to a neighbor the morning after the attack. She had been beaten, had a cut over her eye and was taken to a doctor. There was clear evidence the victim’s trailer had been broken into. One of the investigating officers testified that the trailer door had a chain on it in the middle and the lower part of the door had been pulled out to allow someone to crawl through. The victim was a ninety-two year old woman who had severe hearing problems and had been disoriented since the attack. She testified to being beaten but was unable to state anything about the actual rape. One of those officers, however, testified that the victim had reported the rape to the police. No objection was raised to this testimony. But even so, we have said a rape victim’s report to a third person that a rape occurred is generally admissible. Urquhart v. State, 273 Ark. 486, 621 S.W.2d 218 (1981). It is not necessary that the evidence be sufficient to sustain a conviction. The statute only requires that the confession be accompanied by other proof such an offense was committed. Bivens v. State, supra. The evidence and circumstances in this case were sufficient for such corroboration.
Appellant raises two other points which he believes deprived him of an impartial tribunal. First, he objects to a question posed to the elderly victim of the rape discussed above. On direct she was asked, “Ms. Beulah, do you remember being raped back in December of 1982?” An objection was made but no grounds were stated. The court had already ruled that it would allow leading questions of the witness because of her age and severe hearing problems. Because the objection was not sufficiently specific to inform the trial court as to the particular error complained of, the right to review on appeal was not preserved. Tosh v. State, 278 Ark. 377, 646 S.W.2d 6 (1983).
Appellant also argues that had the trial court granted a directed verdict on this rape charge, the prejudice from the implied accusation in the leading question would have been removed from the minds of the jury in determining guilt or innocence on the other counts. The appellant waived any objection to the leading question by not stating specific grounds. In view of the substantial evidence that appellant had committed two other rapes, the argument that he was prejudiced by the mere implications of a third is not persuasive. Roleson v. State, 277 Ark. 148, 640 S.W.2d 113 (1982).
Affirmed. | [
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Robert H. Dudley, Justice.
Appellant, Derrick Blair, was convicted of burglary, theft and two counts of theft by receiving. The jury fixed each sentence at eighteen years, and the trial judge ordered them to run consecutively. Appellant assigns three points of error. We affirm. Jurisdiction is in this court under Rule 29(1) (b).
Appellant first contends that the trial court erred in permitting a police officer to testify as a fingerprint expert, when that officer had never previously qualified as an expert. Rule 702, Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1977), which governs the admission of expert testimony, provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
The police officer testified that he had specialized in fingerprint work for six years and that he had 80 hours of training at the FBI Academy in latent fingerprint analysis. He testified that he compared latent fingerprints taken from a window at the burglary site with appellant’s fingerprints and found them to be identical.
The determination of the qualifications of an expert witness lies within the discretion of the trial court, and his decision will not be reversed unless that discretion has been abused. Dixon v. State, 268 Ark. 471, 597 S.W.2d 77 (1980). The trial court did not abuse that discretion simply because he allowed the witness to qualify for the first time as an expert. Even if an abuse of discretion had occurred, it was not prejudicial since an expert with more fingerprint analysis credentials, plus courtroom experience, testified that he had independently determined that the latent fingerprints and appellant’s fingerprints were identical.
Appellant next argues that the trial court erred in refusing to give his requested instruction on criminal trespass. This point is also without merit. The state’s witnesses testified that the appellant was guilty of burglary. The appellant testified that he did not enter the structure. There is no evidence of a violation of the criminal trespass statute. A trial judge does not have to give an instruction where there is no evidence to support the giving of that instruction. Blaney v. State, 280 Ark. 253, 657 S.W.2d 531 (1983).
Appellant’s final argument is that the trial court abused its discretion in running his sentences consecutively rather than concurrently. The trial court has the discretion to make maximum sentences run consecutively. Hinton v. State, 260 Ark. 42, 537 S.W.2d 800 (1976). Ark. Stat. Ann. § 43-2312 (Repl. 1977) states in pertinent part:
(T)he sentencing court shall have the authority to direct that the sentence adjudged shall run concurrently with the other sentence, if it shall be deemed best for society and the'person convicted.
A trial judge may order that sentences be served consecutively if it is in the best interest of society and the person convicted. A trial judge’s exercise of discretion will not be reversed unless it is shown that he abused that discretion. Patton v. State, 281 Ark. 36, 660 S.W.2d 939 (1983). In the case at bar, the appellant has been convicted of a total of six felonies, and the trial judge may well have thought the interests of society demanded consecutive sentencing. No abuse of the exercise of discretion has been shown.
Affirmed. | [
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