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J. W. Patton, Jr., Special Justice.
This suit was filed by William McCombs Hardy, one of three beneficiaries of a testamentary trust, to require the trustee, Corinne McCombs Hardy, to restore to the trust estate the sum of $12,911.34, being one-third of the proceeds of certain timber sales made by the trustee during the years 1945 and 1946. This is one of several matters in controversy between these parties and a companion case, No. 9031, is being this day decided by this Court.
M. W. Hardy died testate on November 13, 1929, and his will was duly probated in Pulaski County. Under the provisions of the will the widow, Corinne McCombs Hardy, received as her absolute property the' family homo in the City of Little Rock and certain designated personal property. The testator also devised to his widow a one-third interest for life in the remaining real estate and bequeathed to her a one-third interest absolutely in the remaining personal property. The residue of the estate was devised and bequeathed to Corinne Mc-Combs Hardy and the First National Bank of El Dorado, Arkansas, in trust for William McCombs Hardy, Robert Lamar Hardy and Frances Hope Hardy, the three minor children of M. W. Hardy and Corinne McCombs Hardy. The trustees were given broad powers of control over the trust property and it was provided that the trust was to terminate when the youngest child reached the age of thirty years. William McCombs Hardy was born January 3,1915, and Robert Lamar Hardy and Frances Hope Hardy, twins, were born February 6, 1927, and all three are now living. It was in connection with the last settlement of the trustee with William McCombs Hardy that the present suit arose.
The Bank and Mrs. Hardy were also designated as executors of the will and qualified and acted as such after the will was probated. On May 12, 1931, the widow, Corinne McCombs Hardy, attempted to show her election to take dower instead of under the will by executing a deed, in the form provided by law, in favor of the three minor children and shortly thereafter this suit was filed by R. B. McCombs, as the next friend of the children, praying that the deed be cancelled and that the widow be required to take under the will. On October 30, 1931, the Pulaski County Chancery Court rendered a decree finding that Corinne McCombs Hardy had exercised powers conferred by the will and had accepted benefits under the will that were inconsistent with the right of dower and the Chancellor therefore cancelled the deed and decreed that the widow must take under the will. She accepted said decree and has been taking under the will.
On March 30, 1932, in the same cause, the Pulaski Chancery Court accepted the resignation of the First National Bank as trustee and vested all assets, powers and responsibilities in Corinne McCombs Hardy as the surviving trustee. The Court further directed that the surviving trustee, before February 1st of each year, file a statement of account for the previous calendar year, and the Court expressly retained control of the cause for any further orders or decrees that might be necessary. Thereafter, the trustee filed annual reports describing the income and disbursements of the trust and in each instance the report was approved by the Chancery Court the same day filed. The effect of such orders of approval is a major question on this appeal.
Prom time to time the trustee sold timber from certain lands that had been the property of M. W. Hardy. Prior to the year 194-5 the trustee set aside one-third of the proceeds of such timber sales, invested the same and paid, the income from the investment to herself individually, but held the principal as an asset of the trust. This was because Mrs. Hardy had only a life estate in said one-third interest. In 1945 the Arkansas General Assembly enacted Act 143 which provided that a widow’s dower interest in timber shall be an absolute one-third of the proceeds of any sale. Acting upon the advice of her accountant, who is also an attorney, the trustee, in 1945 and 1946, took for herself absolutely the full one-third of the proceeds of such timber sales. This amounted to the sum of $6,242.82 in the year 1945 and the sum of $6,668.52 in the year 1946 making’ a total of $12,911.34. The trustee’s annual report for the year 1945 was filed and approved on May 8, 1946, and the annual report for the year 1946 was filed and approved February 12, 1947.
On October 27, 1948, the appellant, William Mc-Combs Hardy, filed in the same original cause the petition upon which this appeal is based. He alleged the timber transactions as above detailed and prayed that the trustee be required to restore to the trust estate that portion of the 1945 and 1946 timber sales which she had taken for herself under the authority of Act 143 of 1945 and that she continue to handle timber matters just as she had done before the 1945 Act. Appellant, plaintiff below, contended that since appellee had no dower interest that Act 143 of 1945 did not apply; that the orders approving the 1945 and 1946 reports were not final and that the trustee could not shield herself behind them without perpetrating a constructive fraud upon the beneficiaries. The appellee answered that the terms at which the reports were approved had lapsed and the orders were final and denied that constructive fraud was practiced by the trustee. The Chancellor decreed that the orders approving the reports were final; that the trustee acted in good faith and that there was no ground for vacating and modifying the orders. From that decree there is this appeal.
In view of the high standard of behavior required of a trustee in his fiduciary capacity and in the absence of any statutory provision which might bar the action brought by appellant in this case, we are unable to agree with the decision of the Chancellor.
M. W. Hardy, during his lifetime, accumulated considerable 'property and it was obviously his intention in making his will to adequately provide for both his widow and his three minor children. After providing for his widow in excess of what she would have received had he died intestate, h,e established a trust for his children and designated his widow as one of the trustees, thereby expressing his confidence that she would faithfully apply the trust property according to his wishes. Corinne McCombs Hardy, the widow, by her acceptance of this confidence, expressed her agreement to administer the trust for the use and benefit of the children and certainly not to neglect the interest of the beneficiaries to her own personal advantage. In Hindman v. O’Connor, 54 Ark. 627, 16 S. W. 1052, 13 L. R. A. 490, it was said: “As a general rule, a party occupying a relation of trust or confidence to another is, in equity, bound to abstain from doing everything which can place him in a position inconsistent with the duty or trust such relation imposes on him, or which has a tendency to interfere with the discharge of such duty. ’ ’
It is true that a trustee is not an insurer of the trust property and that as long as he is faithful and diligent in the execution of his duties the courts will not hold a trustee responsible for mere mistakes or errors of judg ment which result in a loss. But in the performance of duties imposed upon a trustee it is the general rule that the trustee must exercise skill, prudence and caution and that he represents and must protect the interest of all the beneficiaries and that he must act honestly and in utmost good faith. In administering the trust, the trustee must act for the beneficiaries and not for himself in antagonism to the interest of the beneficiaries; he is prohibited from using the advantage of his position to gain any benefit for himself at the expense of the beneficiaries and from placing himself in any position where his self-interest will, or may, conflict with his duties. We have several times held that if a trustee violates the rights of a beneficiary by neglect or misconduct, the beneficiary may hold the trustee liable for the damage caused.
As previously stated, Mrs. Hardy accepted the chancery decree and abandoned any claim she had to dower rights. Act 143 of 1945 applies to dower and homestead interests of a widow and not to any life interest that vests in a widow under the provisions of a will and, therefore, is in no way applicable to the interest of the appellee in the estate of her deceased husband. The taking for her own personal use of one-third of the timber sales in 1945 and 1946 was a breach of trust on the part of the trustee. Her acts in taking a part of the proceeds of the timber sales to which she was not entitled was a breach of trust even though she acted in good faith and in the belief that she was legally entitled to same under the authority of Act 143 of 1945. A trustee is under duty to refrain from personal traffic in, or private use, application, or appropriation of trust property or funds, at least without the express consent of the ceshá que trust. There is no evidence in this case that appellant had full knowledge of the facts and certainly no concurrence upon his part in the acts of the trustee. Appellee should, therefore, be required to restore to the trust estate the funds appropriated by her unless the orders of the Chancery Court approving the accounts of the trustee for the years 1945 and 1946 are final.
The rule in Arkansas is that a judgment or final order may not be vacated or modified after the expiration of the term in which it is rendered or made except for the reasons set out in Arkansas Statutes (1947), § 29-506. However, the rule against vacating or modifying a judgment or order after expiration of the term at which it was rendered has no application to interlocutory judgments or orders and such judgments or orders may be vacated or modified at any time before the final judgment. Therefore, we must determine whether the orders of the Chancery Court approving the 1945 and 1946 reports were final or merely interlocutory. In determining whether a judgment or order is final or interlocutory, there is no hard and fast definition or test applicable to all situations. The statements of account which the orders in question approved were not filed in compliance with any provision of the trust instrument or pursuant to any statutory requirement, but at the direction of the Chancery Court. The orders cannot be considered as a final determination of the rights of the parties since the trust does not terminate until the youngest of the beneficiaries reaches the age of thirty years and a judgment or order is not generally considered final where further judicial action is necessary to fully and finally determine and settle the rights of the parties.
The animal accounts, which the Chancery Conrt directed Corinne McCombs Hardy to file, are in many ways comparable to the annual accounts which executors, administrators and guardians of minors are required to file by statute. The Arkansas Legislature has made the order of a Probate Court approving and confirming the account of an executor or administrator binding and conclusive in the absence of fraud or other recognized ground for equitable relief. It is also the rule in Arkansas that the order of confirmation of a guardian’s settlement by the Probate Court is a judgment which can be appealed from, but which cannot be otherwise disturbed, except in a Court of Chancery upon an allegation of fraud or other recognized ground for equitable relief. However, the powers and duties of executors, administrators and guardians have long been the subject of statutory regulation and safeguards for the protection of interested parties have been provided by the Legislature. While the Legislature has provided for annual settlements by personal representatives and guardians and a procedure for confirmation thereof by the Probate Court, it has not seen fit to make similar provisions in the case of trustees and therein lies the distinction.
In Arkansas there is no statute which regulates the creation of trusts and in the absence of such a statute M. W. Hardy had the right to create any trust he deemed wise and expedient as long as it was for a lawful purpose and to establish the powers and duties of the trustee he named. By the terms of his will, M. W. Hardy did create an active express trust for a lawful purpose and the powers and duties of the trustee, Mrs. Hardy, must be determined by the provisions of the instrument which created the trust. Mr. Hardy, as the creator of this trust, made provision for partial settlements between the trustee and each of the beneficiaries as they reached the ages of 21, 26 and 30 and also for a final settlement when tiie youngest beneficiary reached the age of 30 years, but there was no provision for the filing of annual settlements by the trustee and nothing in the will to evidence any intention to relieve the trustee of liability to the beneficiaries prior to a final settlement. If the Chancery Court had the power to relieve the trustee from liability to the beneficiaries by its orders approving the 1945 and 1946 accounts, it must be found in the inherent power of courts of equity over trusts and not in the instrument which created the trust. In Morris v. Boyd et al., 110 Ark. 468, 162 S. W. 60, this Court held that the jurisdiction of equity exists to control and supervise the carrying out of a trust already created and this involves a general superintending control for the purpose of enforcing the trust and preventing a failure thereof. The learned Court further said: “Chancery Courts also assume jurisdiction for the purpose of construing the terms of an instrument whereby a trust is created and to determine its scope. And in case of doubtful construction, the trustee may invoke the jurisdiction of the Court for direction in executing a trust. But the courts do not possess the prerogative power of creating trusts or of altering the terms of instruments creating them.” If the Chancery Court has the power through its orders approving the reports to relieve the trustee of liability to the beneficiaries for a wrongful appropriation of trust funds then it would have the power to alter the terms of the instrument which created the trust. The Chancery Court does not possess that power. In the absence of statutory authority for the filing and confirmation of settlements of trustees, we reach the conclusion that the orders of a Chancery Court approving the accounts of a trustee, other than a final account upon termination of the trust, are interlocutory and not final unless otherwise provided in the instrument which creates the trust. The orders of the Chancellor approving the 1945 and 1946 reports of the trustee should have been modified and the trustee required to restore to the trust that portion of the proceeds of the timber sales which she had appropriated to her own use.
In view of tlie facts that we hold the orders approving the 1945 and 1946 accounts of the trustee to be interlocutory and not final, it is unnecessary to pass on the question of constructive fraud.
The decree of the Chancery Court is accordingly reversed and this cause is remanded for the entry of a decree in accordance with this opinion. All costs in this court and the court below are taxed against the appellee.
Justices Millwee, George Rose Smith and DuNaway disqualified and not participating.
See infra, p. 305.
“The trustee is under a duty to the beneficiary to administer the trust solely in the interest of the beneficiary.” American Law Institute Restatement, Trusts, Vol. 1, § 270. See also 54 American Jurisprudence, § 312, p. 247.
Also Sorrels v. Childers, 129 Ark. 149, 195 S. W. 1, 1 L. R. A. 1917F 430, and Burel v. Baker, 89 Ark. 168, 116 S. W. 181.
“If, therefore, a trustee has exercised the proper care and diligence, he is not responsible for mere error or mistake of judgment.” Graham Brothers Co. v. Galloway Woman’s College, 190 Ark. 692, 81 S. W. (2d) 837. See, also, 54 American Jurisprudence, § 321, p. 255, and Annotation in 3 L. R. A. (N. S.) 415.
65 Corpus Juris, § 519, p. 648.
“Nothing in the law of fiduciary trusts is better settled than that the trustee shall not be allowed to advantage himself in dealing with the trust estate. Lack of any fraud on the part of the trustee will not validate a transaction having the effect of making for himself a profit out of the trust estate.” 54 American Jurisprudence, § 314, p. 249. See, also, 151 A. L. R. 905 and 65 Corpus Juris, § 520, p. 652.
Clark v. Spanley, 122 Ark. 366, 183 S. W. 964, and Casteel v. White River Grocery Co., 159 Ark. 93, 251 S. W. 31.
54 American Jurisprudence, § 313, p. 248.
See 10 A. L. R. 559.
“Any judgment or decree, which finally disposes of the issues between the parties to an action, and finally settles and adjudicates all the rights in controversy, is a final judgment.” McConnell v. Bourland, 175 Ark. 253, 299 S. W. 44.
See Arkansas Statutes (1947), § 62-1508.
France v. Shockey, 92.Ark. 41, 121 S. W. 1056.
As to guardians of minors see Arkansas Statutes (1947), § 67-301 to § 57-353, inclusive. As to accounting and settlement of executors and administrators see Arkansas Statutes (1947), § 62-1501 to § 62-1523, inclusive. | [
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George Rose Smith, Justice.
This action was brought by the appellants, as property owners of Water Improvement District No. 3 of Paragould, for a writ of mandamus to compel the city council of Paragould to call an election pursuant to Act 268 of 1969, for the selection of a board of directors for the improvement district. Ark. Stat. Ann. §§ 20-141 et seq. (Supp. 1971). While the suit was pending Act 268 was repealed by Act 145 of 1973. The defendants filed a motion for summary judgment on the ground that the controversy had become moot. This appeal is from an ensuing summary judgment in favor of the defendants. For reversal the appellants contend that the repealing act is unconstitutional, as an invasion of the judicial province, because it recites that the act being repealed is a local and special act.
That contention is without merit. The improvement district was creatéd in 1920. The complaint alleges that, owing to the repeal of certain statutes, there was no procedure for the election of a board of directors when Act 268 of 1969 was adopted. That act, by its terms, applied to “any municipal water improvement district, organized and in operation for more than forty years, ... in a city having a population of not less than 9,000 nor more than 12,000 according to the last regular census, and not, being operated by an elected commission or board.” Section 20-141. Section 1 of Act 145, the repealing act, reads: “That Act No. 268 of the Acts of Arkansas of 1969 being a local and special act, is hereby repealed.”
The repealing act is unquestionably constitutional. To begin with, the legislature did not declare the earlier act to be unconstitutional. It merely declared that Act 168 was a local and special act. That declaration was true, because the act did not apply to the entire state. “The exclusion of a single county from the operation of the law makes it local.” Webb v. Adams, 180 Ark. 713, 23 S.W. 2d 617 (1929). In the second place, the General Assembly “may repeal any law it enacts . . . and the motive or reason for the legislative action cannot be inquired into by the court.” Gentry v. Harrison, 194 Ark. 916, 110 S.W. 2d 497 (1937). The trial court was right in upholding Act 145 and in finding this case to be moot.
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Robert H. Dudley, Justice.
On December 26, 1978, a man broke into the home of the prosecutrix, threatened her with a knife, choked her, raped her and stole some of her jewelry. During the long ordeal the intruder wore a toboggan cap pulled down over his face and, in addition, blindfolded the prosecutrix. The police subsequently conducted both a visual and a voice out-of-court lineup. Appellant was charged with the crimes and, at trial, testimony of the lineup procedures was allowed into evidence. Appellant was found guilty and was sentenced to two consecutive terms of life imprisonment plus a twenty year consecutive sentence to be served concurrently with a five year sentence. We find no merit in any of the five points argued on appeal and we affirm the convictions. Jurisdiction is in this Court because of the length of the sentences. Rule 29 (1) (b).
Fourteen months after the commission of the crimes the police conducted the lineup procedures. The visual lineup was held in a room designed especially for that purpose. The room has a one-way glass which allows the observer to see into the room but those in the lineup are unable to see the observer. The participants are lined up and given numbers. The observer is then asked if he or she can visually identify any of the persons in the lineup. Here, the visual lineup consisted of six men. The prosecutrix was unable to state that any one of the six was, without question, the person who committed the crimes since she had not seen the face of her attacker. However, she did single out appellant as having the same physical characteristics as the intruder.
The six males in the visual lineup were then rearranged for a voice lineup. In this procedure, the prosecutrix stood on one side of a door and could not observe the same six men who were in the lineup on the other side of the door. Each one came to the door and read phrases which the assailant had uttered during the commission of the crimes. When the prosecutrix heard the appellant’s voice, her hands flew to her face and she began sobbing. She unequivocally identified appellant’s voice as the voice of her assailant. The men in the lineup were rearranged in order and the same type of procedure was had. Again the prosecutrix unequivocally identified the appellant as her attacker.
Appellant sought to suppress both lineup identification procedures by arguing that he was denied counsel during the lineups and that they were conducted in an unduly suggestive manner. Two suppression hearings were held. The trial court at first ruled that the visual identification should be suppressed but that the voice identification should be allowed into evidence. As the jury selection commenced the State orally moved for the court to reexamine the ruling. The court then carefully examined a transcript of the suppression hearings and studied our opinion in Kellensworth v. State, 275 Ark. 252, 631 S.W.2d 1 (1982). After the jury was selected, but before opening statements, the trial court reversed the prior ruling and held that neither lineup should be suppressed. The appellant then moved for a continuance but the motion was denied.
At the suppression hearing the prosecutrix testified that, even though the blindfold greatly limited her vision, she could see downward from underneath the blindfold and could see the white color of her attacker’s skin. Her testimony was that during the rape she felt his fully dressed upper body and discovered that he had a slight build of body and slender shoulders. In addition she found no physical deformities. She testified that, by standing next to him and measuring his height with hers, he was about five feet five inches tall. She stated that she had smelled the odor of tobacco on his breath and had listened to his voice over the full hour. She additionally testified that she inferred that his age was in the late twenties.
With regard to the voice identification the prosecutrix testified that the intruder talked constantly during the hour long ordeal. He spoke in two different ways, a domineering voice when trying to control her and another voice when answering her questions. She described it as an “Arkansas” voice. She had a clear memory of the voice and spontaneously recognized it when she heard appellant speak.
Appellant contends that the trial court committed reversible error in admitting evidence of the lineup identification procedures. The trial court was correct. In Harrison v. State, 276 Ark. 469, 637 S.W.2d 549 (1982), we quoted from James ir Elliott v. State, 270 Ark. 596, 605 S.W.2d 448 (1978) as follows:
It is the likelihood of misidentification that taints the out of court identification process. In determining whether an in court identification is tainted by pretrial occurrences, we consider the totality of the circumstances. In doing so, we consider the opportunity of the identifying witness to observe the accused at the time of the criminal act; the lapse of time between the occurrences and the identification; any inconsistencies of the description given by the witness; whether there was prior misidentification; the facts surrounding the identification; and all matters relating to the identification process. Mayes v. State, 264 Ark. 283, 571 S.W.2d 420 (1978). We have stated reliability is the linchpin in determining the admissibility of identification testimony. In the determination of the admissibility we consider the totality of the circumstances. Lindsey ir Jackson v. State, 264 Ark. 430, 572 S.W.2d 145 (1978).
Here, the prosecutrix was able to clearly hear, partially view and sketchily feel her attacker over the period of an hour. While the lineups were held fourteen months after the crimes, her voice identification was certain and undoubting. Immediately after the crimes the prosecutrix accurately described the criminal to the first arriving police officer as being “a white male in his late twenties, being five feet five inches tall, having a light build, wearing a dark mask, a dark jacket, dark glasses and slacks.” Thus, the description given immediately after the crimes was consistent with the lineup identification. Her degree of attention was impressive. She made no misidentification. The police made no spoken suggestion about people in the lineup. Appellant called an expert witness to testify that the disparity in the ages of appellant and the other participants in the voice lineup would constitute an impermissive suggestiveness. However the witness then admitted that he had not heard the voices of the men in the lineup and that some young men have deeper voices than do some older men. Thus, the disparity in ages was of questionable significance. The trial judge held the identification evidence admissible. We do not reverse a trial judge’s ruling on the admissibility of identification evidence unless it is clearly erroneous as it is a ruling on a mixed question of law and fact. Glover v. State, 276 Ark. 253, 633 S.W.2d 706 (1982). We cannot say the trial judge was clearly in error in this case. On the totality of the circumstances the lineups were sufficiently reliable to withstand examination under the Due Process clause. There is no substantial likelihood of irreparable misidentification.
Appellant argues that the visual lineup was admitted into evidence upon an incomplete identification and the vocal lineup was suggestive. However, after reliability is established, those arguments go to the weight to be given the evidence, not to an exclusionary rule. “The admission of testimony concerning a suggestive and unnecessary identification procedure does not violate due process so long as the identification possesses sufficient aspects of reliability.” Manson v. Brathwaite, 432 U.S. 98 (1977), citing Neil v. Biggers, 409 U.S. 188 (1972). Four years later, the Supreme Court reinforced the concept by stating:
Thus the Court’s opinion in Manson v. Brathwaite approvingly quoted Judge Leventhal’s statement that,
“‘[w]hile identification testimony is significant evidence, such testimony is still only evidence, and, unlike the presence of counsel, is not a factor that goes to the very heart — the ‘integrity’ — of the adversary process.
" ‘Counsel can both cross-examine the identification witness and argue in summation as to factors causing doubts as to the accuracy of the identification — including reference to both any suggestibility in the identification procedure and any coutervailing testimony such as alibi.’” 432 U.S., at 114, n. 14, quoting Clemons v. United States, 133 U.S.App.D.C. 27, 48, 408 F.2d 1230, 1251 (1968) (concurring opinion) (footnote omitted).
Watkins v. Sowders, 449 U.S. 341 (1981).
Once the trial court found the identification procedures to be reliable it was for the jury to decide what weight, if any, they would give to an incomplete visual identification and what weight they would give to an arguably suggestive voice identification, for ‘‘the proper evaluation of evidence under the instructions of the trial judge is the very task our system must assume juries can perform.” Watkins v. Sowders, supra. Here the attorney for appellant exhaustively cross-examined the prosecutrix on her identification and skillfully argued the matter. The trial court was correct in ruling that the jury should be allowed to weigh the identification evidence.
The appellant next contends that the trial court erred in denying his motion for a continuance after reversing his ruling on admissibility of the visual lineup. We find no error.
In Stephens v. State, 277 Ark. 113, 640 S. W.2d 94 (1982), we stated:
A motion for a continuance is addressed to the sound discretion of the trial court. Its action will not be reversed absent a clear abuse of that discretion amounting to a denial of justice and the burden is on the appellant to demonstrate such abuse. Russell v. State, 262 Ark. 447, 559 S.W.2d 7 (1977). In considering whether the court’s discretion has been abused in a particular case, the circumstances of the case must be examined with emphasis on the reasons presented to the judge at the time. Tyler v. State, 265 Ark. 822, 581 S.W.2d 328 (1979).
The circumstances surrounding this case demonstrate a real need for the trial judge to grant a continuance only upon the presentation of valid and specific reasons. This case was (1) set for October 27, 1980, (2) passed to January 12, 1981, (3) reset for May 4,1981, and (4) reset for November 30, 1981. On that day, after the jury was empanelled and sworn the appellant received a continuance, and the case was (5) reset for December 15, 1981. On that date a mistrial was granted because the appellant had escaped and a juror had read about a different conviction of appellant. The case was (6) reset for February 22, 1982 and then (7) reset for April 12, 1982. On that date the trial commenced and the appellant moved for yet another continuance. He offered no specific reasons. He did not contend that the reversal of his prior ruling on the visual lineup required different or additional witnesses nor did he give any other detailed reason why he needed more time. The reversal of the earlier suppression ruling affected only a limited part of the case. As recited by the trial judge, the appellant’s attorney had previously explored that limited part of the case at the two prior suppression hearings. No unknown or new evidence was allowed by the ruling. The trial court did not abuse his discretion in denying the motion.
Appellant’s next point is that the trial court erred in refusing to allow him to test the prosecutrix’s auditory memory with a recording of various voices. The trial court excluded the evidence on the grounds that it was neither identical with nor similar to the prosecutrix’s prior firsthand voice identification. The lack of similarity was demonstrated during appellant’s proffer of the recording when it was necessary to replay a part of the recording because the witness stated it was “distorting.” A ruling on relevancy is discretionary with the trial court and its decision will not be reversed unless an abuse of the trial court’s discretion in the matter is found. See e.g., Daniels v. State, 277 Ark. 23, 638 S.W.2d 676 (1982); Rasmussen v. State, 277 Ark. 238, 641 S.W.2d 699 (1982).
The rationale of our rule is well set out in McCormick’s Evidence § 202 (1972 ed.):
Here . . . the question is one of weighing the probative value of the evidence of experiments against the dangers of misleading the jury (who may attach exaggerated significance to the tests), unfair surprise, and, occasionally, undue consumption of time. The danger of arousing hostility or prejudice is seldom present in respect to this type of evidence. Usually the best gauge of the probative value of experiments is the extent to which the conditions of the experiment were identical with or similar to those obtaining in respect to the litigated happening. Accordingly, counsel in planning experiments must seek to make the conditions as nearly identical as may be, and in presenting the evidence he must be prepared to lay the foundation by preliminary proof of similarity of conditions. Though the similarity formula is sometimes over-rigidly applied, most courts will recognize that the requirement is not a relative one, so that where a high degree of similarity is not attainable, the court might still conclude that the results of the experiment are of substantial enlightening value to the jury and admit the evidence. Manifestly, if the trial judge is to be given responsibility for exercising such an indefinable value-judgment he must be accorded a reasonable leeway of discretion reviewable only for abuse.
Considering the facts before him, the trial judge did not abuse his discretion in disallowing the experiment.
Appellant’s final contention is that the trial court erred in admitting a charm bracelet into evidence. The bracelet was identified as one belonging to the prosecutrix and which had been stolen from her home on the night of the crimes. Appellant contends that the bracelet was not connected to him and therefore is not relevant.
On various occasions appellant and his paramour occupied her father’s house. Her father consented to a search of his house. The prosecutrix’s charm bracelet was found in the paramour’s bedroom which, according to her father’s testimony, had been occupied on occasion by his daughter and appellant.
“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Ark. Unif. Rules of Evid. Rule 401, Ark. Stat. Ann. § 28-1001 (Repl. 1979).
The discovery of the charm bracelet in a room which had been occupied by appellant after the crimes had a tendency to make his identity as the intruder more probable than it would have been without that evidence. Therefore the circumstantial evidence was relevant and admissible. Parker v. State, 266 Ark. 13, 582 S.W.2d 34 (1979).
Pursuant to Rule 11 (f) we have reviewed all objections decided adversely to appellant and find no prejudicial error.
Affirmed. | [
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Mehaffy, J.
The appellee, Fonzo Johnson, filed suit in the Sebastian Circuit Court against appellant, and alleged that appellant was a physician and had been employed by appellee to treat Rosie Johnson, wife of appellee. It was alleged that Johnson and his wife had two small children, that they lived happily together as husband and wife from the time of their marriage until about June 21, 1928. Rosie Johnson had been suffering from pellagra and appellee took her to Hartford and placed her under the treatment of appellant. It is alleged that she became infatuated with Alexander and her affections alienated from the appellee. That on the 21st day of June, 1928, the said Alexander, by persuasion and undue influence, induced Rosie Johnson to go with him to Howe, Oklahoma, in the night time and that he registered at the Bennett Hotel in Howe as R. S. Alexander and wife, and that they occupied room 10' in said hotel, and that, on account of the wrongful influence exercised by appellant brought to bear upon Rosie Johnson, it so alienated her affections that it caused a separation between appellee and his wife. After the alleged conduct between Alexander and Rosie Johnson, Johnson and his wife separated, and it is alleged that, because of Alexander’s conduct he lost the companionship, comforts, society, love and trust of his wife and was deprived of her help in raising their children.
The evidence introduced by appellee tended to show that on the evening of June 21 Alexander and Mrs. Johnson left Hartford and drove to Howe, Oklahoma, registered at the hotel as man and wife 'and stayed together that night. That next morning they «trove back to Hartford, Arkansas, from Howe, Oklahoma, together. The evidence introduced on the part of appellant tends to show that they did not go together to Howe, and did not stay together at the hotel. In other words, there is a sharp conflict in the evidence as to the conduct of Alexander and Mrs. Johnson. It would serve no useful purpose to set out the testimony in full. The jury returned a verdict for $5,000, judgment was entered for that amount, motion for a new trial was filed and overruled, and the case is here on appeal.
Appellant earnestly contends that there is a total want of evidence to show that the wife stayed at the Bennett Hotel at Howe at the time alleged or any other time.
■C. W. Luten, manager of the Bennett Hotel at Howe, Oklahoma, testified positively that on the 21st day of June, 1928, along about 10 or 10:15 or 10:30 p. m., Dr. Alexander and a woman he treated as his wife, registered at his hotel and spent the night there. They came in the hotel and asked for a room and registered, and witness took them to a room, and they stayed all night, and there was but one bed in the room. Witness talked to Dr. Alexander about five minutes before he went to bed. He' said he had had oar trouble and asked about a garage and said he and his wife would stay all night and have the car repaired next morning. Next morning he went up town, and when he got his car fixed, came back and left. He testified that he recognized the defendant as the man who registered. He also testified that the woman looked to be about 25 years old. He had never seen her before and has never seen her since. The woman who stayed all night with Dr. Alexander did not come out of the depot next morning. He did not pick up a woman there that witness knew of. The only woman witness saw him with was the one he stayed with all night. The evidence also shows that the page of the hotel register containing the names of Dr. Alexander and wife was torn out. There was also evidence*that the signature of Dr. Alexander on checks and notes which he admitted was genuine was the same as the handwriting on the hotel register.
Miss May Denton, a niece of Mr. Luten, who lived at the Bennett Hotel on June 21, 1928, testified that Dr. Alexander stayed at the hotel. That this Mr. Alexander and a young lady came down in the office and the young lady asked for a comb, which witness furnished. This witness did not know Mrs. Johnson, but she testified that it was a woman about 25 or 26 years old. She identified Dr. Alexander as the person who stayed at the hotel.
Minnie Lou Gentry, a cousin of Rosa Johnson, wife of appellee, testified that Rosa Johnson came to her residence at Heavener, Oklahoma, on June 22, 1928, about 9 o ’clock in the morning in a car with Dr. Alexander. They came to get the baby. Witness was keeping a baby for Mrs. Johnson. They did not take it away she testified, because it cried for her, and Dr. Alexander told Rosa to leave it and they would come back and get it.
Mr. C. W. Luten was recalled and described the woman who spent the night with Dr. Alexander, and the description given by him was a fair description of Rosa Johnson.
The appellee, being recalled, testified to the description of Rosa Johnson, and said she was 26 years old.
Dr. Alexander testified very positively that he was not at Howe and did not register there at any time and did not spend the night there with any woman, but he also testified that on the night of June 21 he had two cases for treatment at Heavener, and that Mrs. Johnson asked him to allow her to go with him. He told her she could go along and she did go. We therefore have the appellant’s statement that they left Hartford together, going, as he said, to Heavener, Oklahoma. Dr. Alexander also testified that on the next day he and Mrs. Johnson came back to Hartford in the car; he says he went to Heavener and saw her at the depot, just standing there, and that she got in the car with him and went on down to her uncle’s, where the conversation was had about the baby. The positive testimony that Dr. Alexander registered with a woman 25 or 26 years old at the hotel and spent the night with her, together with the evidence indicating that the description of this woman suited the description of Mrs. Johnson, the fact that they left Hartford together going towards Howe, Oklahoma, and the evidence that they came to her uncle’s together next morning and back to Hartford together on the 22d, was sufficient evidence to justify the jury in reaching the conclusion that Dr. Alexander and Mrs. Johnson spent the night together at the hotel in Howe. This evidence is contradicted by Dr. Alexander and his witnesses, but when there is substantial evidence to sustain the finding of facts by a jury, the verdict of the jury is conclusive here. In other words, if the evidence is conflicting, it is the province of the jury, and not this court to pass on the weight of the evidence. We therefore think that the evidence was sufficient on the question of Dr. Alexander and Mrs. Johnson spending the night at the hotel together.
It is next contended by appellant that there is no evidence of any enticement or ¡inducement. We think the evidence to the effect that the wife of Johnson, who was a mother of two little children, went with appellant in his car from Hartford to Howe, Oklahoma, and spent the night with him is ample evidence to support the allegation of inducement.
We said in a very recent case that an instruction is erroneous which simply requires that the appellant by her conduct won the attention and affections of plaintiff’s husband without imposing the requirement that it be found that there was a conscious wrongdoing on the part of appellant. Bevers v. Bradstreet, 170 Ark. 650, 280 S. W. 667. But what stronger proof could there possibly be of conscious wrongdoing on the part of appellant than the proof that he took appellee’s wife from Hartford, Arkansas, to Howe, Oklahoma, and spent the night with her in a hotel 1 This court also said in the case last mentioned: “The thing forbidden and made actionable is the entry of a home by a wrongdoer and. the consequent loss of consortium by the injured spouse; it does not matter whether this entry is by physical violence or subtle influence ; but it is essential that there should be a conscious purpose to do a wrongful act. One who does this has acted willfully and wrongfully, and in bad faith to the injured spouse, and is liable to respond in damages therefor. ’ ’ The jury must have found that there was a deliberate. conscious purpose to do a wrongful act.
“Malice, as the term is used in this class of actions, does not necessarily mean that which must proceed from a spiteful, malignant or revengeful disposition; and it has been well said that it would seem on principle to be rare indeed if the motive of a stranger in breaking up a family could be a good one. Hence it has been held that if a strang-er interferes between a husband and wife and by advice or inducement causes her to leave him or takes her away with or without her consent and encourages her to remain from him or harbors or protects her while away, he does so at his peril and must assume the burden of proving good cause and good faith for his conduct. Where the alienation of husband’s affections is by means of adultery, malice in law is inferred from such wrongful conduct.” 13 E. C. L. 1466.
Of course the motive in breaking up the home where adultery was shown could not be a good one. Wherever adultery is shown, there is no question about the bad motive and no other proof is necesary.
Appellant next argues that the court erred in giving certain instructions. It is not necessary to set out the instructions in full, because, while arguing that the instructions are abstract, his only other argument is to the statement in the instructions with reference to wrongful acts and submitting questions to the jury that he contends there was no evidence to support.
As to the contention that the instructions were abstract and submitted questions to the jury which are not supported by the evidence, it is sufficient to say that the evidence of adultery justified the giving of the instructions. Again, there was no specific objection made to any instruction. The objections were general, and we have many times held that, unless instructions are inherently wrong, a general objection is insufficient. In this case the instructions given by the trial court properly submitted the questions to the jury and the instructions correctly stated the law. If the appellant had thought they were improperly worded, as he now argues, he should have made specific objection. A general objection is insufficient. Norton v. Bennett, 181 Ark. 1132, 29 S. W. (2d) 683 ; Graves v. Jewel Tea Co., 180 Ark. 980, 23 S. W. (2d) 972; Lankford v. Cain, 179 Ark. 461, 16 S. W. (2d) 463. The instructions must be considered as a whole, and, when so considered, they correctly stated the law.
If the evidence introduced on the part of plaintiff is true, the jury was justified in returning a verdict for the appellee. Where the evidence is conflicting, it is a question for the jury. The jury passes upon the weight of the evidence and the credibility of witnesses. In this case, the evidence shows that Johnson and his wife were living happily together, they had two small children, and this evidence is undisputed. The evidence on the part of appellee shows that the appellant took appellee’s wife from Hartford to Howe, stayed all night with her in the hotel there, registered as man and wife, and, if this is. true, it not only justified the jury in finding for appellee but the verdict was not excessive. The jury found in favor of appellee on conflicting evidence under proper instructions, and the verdict is conclusive here.
The judgment is therefore affirmed. | [
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Jack Holt, Jr., Chief Justice.
This appeal involves two issues: (1) whether under the facts of this case a one percent (1 %) commitment fee constituted interest which, when added to the interest on a particular loan, tainted the transaction with usury; and (2) whether the adoption of Amendment 60 to article 19, § 13 of the Arkansas Constitution had the effect of repealing Ark. Code Ann. §§ 4-57-106 and 4-57-107 (1987). We find that both issues require an affirmative response.
Separate appellants William and Katherine Henslee and Stephen and Lynn Wilson obtained a $121,600.00 three-year loan from appellee Madison Guaranty Savings and Loan (“Madison”) in order to fund the purchase of a building. Interest on the loan was at a fixed rate of twelve and one-half percent (12.5%) per annum — the maximum legal rate at the time. Before closing the loan, Madison required payment of a one percent (1 %) commitment fee. Sometime later, the Henslees and Wilsons defaulted on the loan. Madison then filed suit to foreclose its mortgage lien on the property. Separate appellant Lois M. Napper had a second mortgage lien on the same property and was joined as a party.
The Henslees, the Wilsons, and Napper filed counterclaims in the Madison suit alleging that the commitment fee constituted interest which, when added to the 12.5 % interest, tainted the loan transaction with usury. Napper also requested that her lien be declared superior to that of Madison by virtue of Ark. Code Ann. § 4-57-107(b) (3). The trial court concluded that the commitment fee did not make the loan usurious and that the Napper lien remained inferior to that of Madison. A foreclosure decree was then entered. From that order comes this appeal.
Appellants first argue that the chancellor erred in his determination that the commitment fee did not make the Madison loan usurious. Next, it is argued that the adoption of Amendment 60 to article 19, § 13 of the Arkansas Constitution neither expressly nor by implication repealed our code provisions on usury and interest, which in part allowed second lien creditors such as Napper to assert priority over liens securing usurious agreements.
We find that the chancellor’s determination with regard to the issue of usury was clearly against a preponderance of the evidence. In doing so, we conclude that Napper’s lien remains inferior to Madison’s as we find that Amendment 60 repealed Ark. Code Ann. § § 4-57-106 and 4-57-107(1987) by implication. We therefore reverse and remand for proceedings not inconsistent with this opinion.
On appeal, this court reviews chancery cases de novo on the record. We do not reverse unless the chancellor’s findings are clearly erroneous. Milligan v. General Oil Co., 293 Ark. 401, 738 S.W.2d 404 (1987).
Appellant Bill Henslee first discussed the loan in April 1985 with Don Denton, chief loan officer for Madison. Sometime in May 1985, Henslee sent Denton a loan application which apparently proposed a “one point interest” “fee paid to lender.” It is unclear from the record what part Henslee’s application played in the subsequent loan transaction. However, Denton testified that during negotiation of the loan it was emphasized to Henslee that Madison would require a one percent (1 % ) commitment fee for taking the market risk of funding a fixed interest loan at some future date. Denton’s testimony included the following:
The purpose of my collecting the 1 % was to pass on the risk that interest rates might go up and you would have a fixed rate loan. [Emphasis ours.]
According to Denton, Henslee was told there would be a 30-day period between acceptance of the commitment and closing of the loan.
Denton also testified that commitment fees were not charged on all of Madison’s loan transactions; rather, only commercial loans that would be on the books for an extended period of time. Finally, Denton testified that commitment fees were only required in cases where the loan would be funded some time after the commitment, not in cases where loans were funded on or about the same day Madison agreed to make the loan.
On the other hand, Henslee denied that during negotiation of the loan Denton ever mentioned that Madison would require payment of a one percent commitment fee; though this testimony is at variance with the proposal contained in Henslee’s application and with the testimony of Don Denton. In any event, Henslee received a letter from Madison on or about June 19 which included the following language:
We are pleased to extend a commitment for a loan in the amount of $121,600.00 for the purchase of real property .... This loan will be amortized over twenty-five years with a three-year balloon at 12½% rate.
Prior to closing and funding of this loan... a fee in the amount of $ 1,216.00 will be due for this commitment. This commitment fee cannot be funded from proceeds of the loan. Your check for this amount will be appreciated.
Upon the receipt of this commitment fee, final instructions will be given ... for closing.
Despite obvious discrepancies in the testimony as to when Henslee first knew Madison would require a commitment fee, the commitment letter itself fails to reflect the claimed market risk of funding a fixed interest loan at some future date and, as the record clearly shows, Henslee paid the commitment fee immediately upon receipt of the letter and the loan was closed on the same afternoon. It was funded on or about June 20, and the mortgage was filed on or about June 24. Therefore, whatever the negotiations between the parties may have been, the net result was spelled out in the Madison commitment letter of June 19— the loan would not be closed or funded until Henslee paid a one percent (1%) commitment fee.
At the time the loan was made, the federal reserve discount rate was seven and one-half (7.5%) percent. Amendment 60 to Article 19, § 13 of the Arkansas Constitution provided that the maximum legal rate of interest was five percent (5%) above the federal discount rate. Therefore, the loan was for the maximum lawful rate of interest — twelve and one-half percent (12.5%).
The first issue we must address is whether the one percent (1 %) commitment fee can be considered as additional interest on this loan. In Arkansas Savings and Loan Association v. Mack Trucks of Arkansas, 263 Ark. 264, 566 S.W.2d 128 (1978), the loan amount was $340,000.00, which was secured by a mortgage. Arkansas Savings, the lender, made periodic disbursements of the loan proceeds and at one point disbursed to itself $3,400.00 as a “service charge.” This charge was later characterized as a “commitment fee.” The fee was for the stated purpose of “the lender binding itself ‘absolutely and unconditionally to make said loans and advances.’ ” The chancellor determined that the commitment fee was interest which, when added to the interest on the loan, made the agreement usurious. We affirmed.
In Mack Trucks this court cited Sosebee v. Boswell, 242 Ark. 396, 414 S.W.2d 380 (1967), for the principle that “the moneylender cannot impose upon the borrower charges that in fact constitute the lender’s overhead expenses or costs of doing business.” We said in Mack Trucks that the commitment fee constituted a discount — the taking of interest in advance. The commitment fee amounted to interest because it was nothing more than the lender’s overhead or cost of doing business — which the lender could not pass on to the borrower. Because the fee was interest, and because that interest when added to the interest on the loan exceeded the maximum allowable under law, the loan was usurious.
To distinguish Mack Trucks, appellee Madison points out that there the lender apparently charged a one percent fee on all commercial type loans, and that the fee was paid out of the proceeds of the loan. Neither fact is present in the case at bar. However, Madison has failed to provide persuasive reasoning as to why these factors would serve as a valid distinction. The testimony shows that Madison charged commitment fees on many of its loans. Further, we see little difference between the situation where the loan amount is reduced because the creditor disburses to itself a 1% fee out of the loan principal or the situation where the borrower pays the commitment fee out of his own pocket prior to funding of the loan. In either case, the creditor is “passing on” the cost of doing business to the borrower, which we held in Mack Trucks could not be done under the circumstances without running afoul of the proscription against usurious loans.
The issue was later addressed in First National Mortgage Co. v. Arkmo Lumber & Supply Co., 277 Ark. 298, 641 S.W.2d 31 (1982). In an opinion by former justice George Rose Smith, we again affirmed the chancellor’s determination that a loan agreement and mortgage were tainted by usury because of a requirement in the note that the “signers hereby agree to pay 1% commitment fee.” Citing Mack Trucks, this court stated:
We have held that a commitment fee, assessed by the lender for its readiness to have the total amount of a... loan available when needed, is in fact part of the lender’s cost of doing business and must be treated as interest if charged to the borrower.
Nothing we said in Arkmo suggested that the lender must require commitment fees on all loans, nor was there any mention of a requirement that the fee be paid out of the loan principal. Madison basically argues that Arkmo is an unwarranted extension of our decision in Mack Trucks. No convincing argument is made to support that contention.
Madison’s agent and representative, Don Denton, candidly conceded that the one percent commitment fee is normally assessed simply to pass on to borrowers the risk assumed by Madison that its costs might change as to a fixed interest three-year loan which would not be funded until some future date. Here, however, no future date was specified. Although there is some testimony that timing of the closing date was geared to Henslee’s need for immediate funds, the commitment letter on its face demonstrates that payment of the commitment fee would be contemporaneous with Madison’s act of closing and funding of the loan. Accordingly, there was no risk, and Madison did no more than take interest in advance, which when added to the interest stated on the loan agreement made the loan usurious. To that extent, the chancellor’s judgment must be reversed.
It now remains to determine the effect of our conclusion that the loan agreement was tainted by usury. Before the adoption of Amendment 60, article 19, § 13 of the Arkansas Constitution provided:
All contracts for a greater rate of interest than ten percent per annum shall be void, as to principal and interest, and the General Assembly shall prohibit the same by law ....
Pursuant to the requirement that the General Assembly prohibit all such contracts, the legislature enacted Ark. Stat. Ann. §§ 68-601 — 68-614 (Supp. 1985), now compiled as Ark. Code Ann. §§ 4-57-101 — 4-57-108 (1987), which govern interest and usury in commercial law.
Amendment 60 changed the law, however, and article 19, § 13 of the Arkansas Constitution now provides that the maximum rate of interest on any contract entered into shall not exceed five percent (5 %) per annum above the federal discount rate. Further:
All such contracts having a rate of interest in excess of the maximum lawful rate shall be void as to the unpaid interest. A person who has paid interest in excess of the maximum lawful rate may recover... twice the amount of interest paid.
The express intent of Amendment 60 is that the taint of usury voids the agreement only to the extent of unpaid interest — persons who have paid interest in excess of the maximum lawful rate may recover twice the amount of interest paid. Amendment 60 further provides:
The provisions hereof revoke all provisions of State law which establish the maximum rate of interest chargeable in the State or which are otherwise inconsistent herewith. [Emphasis ours.]
The issue at this point is the effect of Amendment 60 on existing code provisions which allow second lien mortgage creditors such as Lois Napper to gain priority over Madison’s lien upon a finding that Madison’s agreement was tainted by usury. Ark. Code Ann. § 4-57-107(a)(l) (1987) provides that every “lien created or arising by mortgage ... to secure the payment of a [usurious] contract... is void.” Subsection (b)(3) then provides:
Any creditor [Napper] whose debtor [Henslees and Wilsons] has given a lien by mortgage ... to secure the payment of a usurious contract may bring his suit in equity against the parties to the usurious contract [debtors and Madison] and recover judgment for his debt against the debtor, and a decree cancelling and annulling the usurious lien ....
Ark. Code. Ann. § 4-57-106 (1987) provides:
All bonds, bill, notes, assurances, conveyances, and all other contracts or securities whatever, whereupon there is reserved, taken, or secured, or agreed to be taken or reserved, any greater sum or greater value for the loan or forbearance of any money ... than is prescribed [by law] shall be void.
Madison contends that our code provisions on usury and interest present an irreconcilable conflict with the intent of Amendment 60 that the taint of usury affects only the unpaid interest, whereas section 4-57-107 would void the lien underlying the contract, and section 4-57-106 would void the contract itself. Napper, on the other hand, argues that the legislature could not have intended that parties clearly protected under the laws enacted prior to Amendment 60 should now be without a remedy and that the only purpose of the Amendment was to change the lawful rate of interest.
Our case law provides that the adoption of a particular constitutional amendment does not necessarily have the effect of invalidating every act of the General Assembly bearing upon the subject, particularly those passed prior to the effective date of the amendment, if they are not in irreconcilable conflict with or repugnant to the amendment. McKenzie v. Burris, 255 Ark. 330, 500 S.W.2d 357 (1973). An existing statute is therefore superseded by a subsequent constitutional amendment only when the legislature so provides, or where there is an irreconcilable conflict or the statute is necessarily repugnant to the new constitutional provision. Id. at 341. In this regard, a basic and fundamental rule when considering the effect of both statutes and constitutional amendments is that repeal by implication is not favored and is not allowed except where there is a repugnancy between the former and later such that both cannot stand together. Id. at 341-342.
When we consider the pre-Amendment 60 mandate of article 19, § 13 that usury voids contracts both as to interest and principal, it becomes clear that sections such as 4-57-106 and 4-57-107 were enacted to provide for the obvious; namely, all bonds, bills, notes, assurances, conveyances, contracts, or securities of any kind taken in excess of the lawful rate of interest would be void, and liens securing the applicable agreements could be voided by inferior lien creditors. Those remedies are clearly and necessarily repugnant to the stated provision of Amendment 60 that contracts in excess of the maximum lawful rate of interest are void only as to unpaid interest.
The provisions of Amendment 60 and the remedies provided by our code provisions on usury and interest simply cannot stand together. We therefore conclude that Amendment 60 by implication repealed Ark. Code Ann. §§ 4-57-106 and 4-57-107.
The chancellor’s determination that the Madison loan agreement was not tainted by usury is reversed. We remand for further proceedings and assessments under Amendment 60 not inconsistent with this opinion.
Reversed and remanded.
Purtle and Hays, JJ., dissent. | [
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Ed. F. McFaddin, Justice.
This is a snit seeking to impress a trust on real property.
In 1932 Mrs. Felice Field executed a regular warranty deed to L. C. Gachot and J. F. Gachot (her nephews), conveying certain lands in Pulaski County. There was nothing in the deed to indicate, or even suggest, that the grantees received the title in any way except as the owners thereof. Under an agreement with J. F. Gachot, L. C. Gachot went into possession of the property here involved and so remained until his death in 1948. Then, in 1949, this suit was filed alleging (and evidence was offered to that effect) that when Mrs. Felice Field made the deed to L. C. Gachot and J. F. Gachot in 1932, the said grantees agreed with the grantor to hold the property as trustees for themselves and their brothers and sisters. Such agreement is the trust that is sought to be impressed on the property against the widow and heirs of L. C. Gachot. The Chancery Court rejected the evidence as to the alleged trust agreement and dismissed the compliant for want of equity; and this appeal ensued.
At the outset, appellants concede that an express trust cannot be established by oral evidence. See § 38-106, Ark. Stats. 1947; also Patton v. Randolph, 197 Ark. 653, 124 S. W. 2d 823; and Hawkins v. Scanlon, 212 Ark. 180, 206 S. W. 2d 179. But appellants contend that the trust here sought to be imposed is not an express trust, but a constructive trust and they cite, inter alia, § 45 of the Bestatement of the Law of Trusts:
“Where the owner of an interest in land transfers it inter vivos to another in trust for a third person, but no memorandum properly evidencing the intention to create a trust is signed, and the transferee refuses to perform the trust, the transferee holds the interest upon a constructive trust for the third person, if, but only if,
“(a) — the transferee by fraud, duress or undue influence prevented the transferror from creating an enforceable interest in the third person, or
“ (b) — tbe transferee at the time of the transfer was in a confidential relation to the transferror, or
“(c) — the transfer was made by the transferror in contemplation of death.”
It is conceded that sub-paragraph (a) does not apply to this case; but it is earnestly insisted that a trust should be decreed in the case at bar under either sub-paragraph (b) or sub-paragraph (c).
In the briefs no Arkansas case is cited as going to show that such sub-paragraphs (b) and (c) are recognized by holdings in this state. But even if the rules stated in sub-paragraphs (b) and (c) prevail in Arkansas (which it is unnecessary to decide), nevertheless the proof in the case at bar is entirely insufficient to justify the application of either of these sub-paragraphs. As to sub-paragraph (b), there was no more of a “confidential relation” existing between the grantor, Mrs. Field, and the grantee, L. C. G-achot than exists between any other aunt and nephew; there was a kinship, but not a confidential relationship; he did not importune her to make the deed; they were not living in the same home; she consulted an attorney who prepared the deed for her. As to sub-paragraph (c), there was no more “contemplation of death” on the part of Mrs. Field, the grantor, when she made the deed in question than there is such contemplation by any person of advanced years: she was both physically and mentally active at the time she had the attorney prepare the deed; she was not in extremis; she lived fourteen months after its delivery.
A study of the evidence in the case at bar reflects that this suit — filed after the death of L. O. Gachot— is an effort to establish an express trust by oral evidence, and is within the interdiction of § 38-106, Ark. Stats. 1947, and our cases, of which Patton v. Randolph, supra, and Hawkins v. Scanlon, supra, are only a few.
Affirmed.
The Chief Justice and Mr. Justice George Rose Smith not participating.
There is an article in 3 Ark. Law Review 3, entitled “A Decade in the Law of Trusts,” in which some cases are reviewed on these two sub-paragraphs. | [
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Ed. F. McFaddin, Justice.
This appeal necessitates a consideration of a portion of the Arkansas income tax law (§ 84-2001 et seq., Ark. Stats.).
Appellee, at all times a citizen and resident of Craig-head County, Arkansas, in 1943, 1944 and 1945 engaged in the business of drilling some wells for oil in the State of Illinois. The wells were “dry holes”; and appellee claimed, as deductible from his Arkansas State income, the amount expended for -such drilling. Appellant, as Commissioner of Revenue of Arkansas, denied that the items were deductible; and this appeal challenges the correctness of the Chancery Court decree which allowed the deductions.
We affirm the Chancery decree. Section 84-2016, Ark. Stats. 1947, contains ten paragraphs, each listing items that may be deducted in computing the net income of a taxpayer. These are contained in lettered paragraphs (a) to (j) inclusive. Paragraph (a) allows as deductions “All the ordinary and necessary expenses paid during the income year in carrying on any trade or business, . . . ” Paragraph (d) lists, as items for deduction, “Losses sustained during the income year and not compensated for by insurance or otherwise, if in- ourred in trade or business and sucli losses incurred in any transaction entered into for profit, though not connected with the trade or business, . . The appel-lee incurred such expenses in drilling for oil, and is entitled to claim them as deductible items under one or the other of the foregoing sections. Our State Statute allowing these deductions is so clear that cases decided under the Federal Statute are inapplicable.
Appellant urges that Act 162 of. 1943, in relieving an Arkansas resident from paying taxes on income received from outside the State, necessarily implies that deductions are not to be allowed on losses incurred in business ventures engaged in outside the State. One sufficient answer to the appellee’s contention — as applied to the facts in the case at bar, rather than to some sup-posititious case — is that Act 162 does not mention or attempt to change the Statute regarding deductible items. It is concerned with income and not with deductions. The purpose of the Act, as stated in the caption, was to protect an Arkansas resident from double payment of income tax.
The appellant in the case at bar is seeking by implication to use Act 162 to prevent the taxpayer from claiming items deductible under § 84-2016, Ark. Stats. 1947. Tax acts are to be construed in favor of the taxpayer; and matters not appearing in a taxing Statute are not to be read into it when such result is adverse to the taxpayer through implication. Our cases recognizing and declaring this salutary interpretation of the law are legion. A few of them are: Fort Smith Gas Co. v. Wiseman, 189 Ark. 675, 74 S. W. 2d 789; Wiseman v. Arkansas Utilities Company, 191 Ark. 854, 88 S. W. 2d 81; Hardin v. Fort Smith Couch & Bedding Co., 202 Ark. 814, 152 S. W. 2d 1015; U-Drive-’Em Service Company, Inc. v. Hardin, 205 Ark. 501, 169 S. W. 2d 584; McCain v. Crossett Lumber Company, 206 Ark. 51, 174 S. W. 2d 114; McLeod v. Kansas City Southern Railway Co., 206 Ark. 281, 175 S. W. 2d 391; McLeod v. Commercial National Bank, 206 Ark. 1086, 178 S. W. 2d 496; Moses v. McLeod, 207 Ark. 252, 180 S. W. 2d 110; City of Little Rock v. Ark. Corporation Commission, 209 Ark. 18, 189 S. W. 2d 382; and Cook v. Ark.-Mo. Power Corp., 209 Ark. 750, 192 S. W. 2d 210.
The decree of the Chancery Court is in all things affirmed.
Justices George Rose Smith and Dunaway dissent.
This Act is captioned “AN ACT to Prevent Double State Income Taxation of Individual Residents of Arkansas.” Section 1 of the Act provides that when the gross income of an Arkansas resident includes income derived from property outside the State or business transacted outside the State, the Arkansas tax shall be first computed as if all the income were derived from inside the State; and then a credit shall be given for the amount of income tax owed by the Arkansas resident to the State or Territory from which such income has been received by the taxpayer.
Section 2 provides that no income arising from use, production, or sale of real estate situated in another State shall he included in the gross or net income of a resident of Arkansas.
While a Caption, or Title, is not a part of an Act, yet, when it expresses the Legislative intent implicit in the text, it may be referred to in connection with the overall purpose of the Act. Pruitt v. Sebastian County Coal & Mining Co., 215 Ark. 673, 222 S. W. 2d 50. | [
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G-rifeiN Smith, Chief Justice.
Land carved from 960 acres near Monette, in the Eastern District of Craighead County, was described in an executory contract, and some of it forms the subject-matter of this controversy.
Activities resulting in the Chancery suit had their inception in efforts of Dr. W. E. Yount, equitable owner of the parent tract, to clear his indebtedness and salvage something from this valuable holding. He employed C. M. Boydstun, of Jonesboro, as agent, and H. M. Cooley, of the same city, as lawyer-agent, to deal with the lands. Dr. Yount, a dentist, residing at Cape Girardeau, Mo., found personal supervision of the property to be impracticable.
In December, 1929, Dr. Yount agreed to sell W. B. Wallace and Everett Wallace two tracts, one containing 80 acres and the other 20. There is evidence that the described area actually contained 101 acres, 43 of which were cleared and contained a house and barn. Dr. Yount, realizing the difficulty he would have in removing legal encumbrances from the land, accepted a down payment of $100 and consented that the next payment ($1,775, representing a fourth of the balance on the basis of $75 per acre) should be made when he could show a merchantable title. The method provided for payment of the remaining three-fourths (less the $100 that went with the contract) is not important here; nor are we concerned with sales contracts made in 1929 by Dr. Yount with other parties, and with his later contracts.
There is testimony that the land is quite valuable now —worth, perhaps, $150 per acre. Some witnesses thought that $30 per acre would represent actual values in 192.9, and that the contract price of $75 was extremely high.
Due to depressed conditions following 1929, W. B. and Everett Wallace were willing to negotiate with Dr. Yount on a basis differing from the written contract, although it is possible.that they could have stood-on the strict letter of their agreement that the second payment was not due until an abstract had been supplied and that title to the property be merchantable.
They elected, however, to accept Dr. Yount’s suggestion, made through the agent Boydstun, that for 1930 and 1931 a fourth of the cotton and a third of other crops would be delivered to Dr. Yount, proceeds to be applied to the payment of taxes and insurance. If, after making these payments, a balance remained, it would be applied on the purchase price.
The Sturdivant Bank of Cape Girardeau held an eleven thousand dollar second mortgage on Dr. Yount’s lands, and the Doctor owed considerable interest on this mortgage. C. A. Yandivort was the bank’s president. In September, 1931, Yount deeded the entire property to Vandivort, who acted as trustee for the bank. In 1933 Dr. Yount filed voluntary bankruptcy proceedings, and there was an adjudication in 1934. If sums paid by contract purchasers of the Craighead County lands were thought by the buyers to be due them from Dr. Yount, they failed to file claims.
As president of the bank Yandivort designated Boydstun to collect rents.
Appellant claims that Vandivort, while inspecting the properties late in 1931, agreed with W. B. Wallace to accept payments on the basis of a third and fourth, as Dr. Yount had, until it was possible to procure a deed. On the first of January, 1932, Boydstun and W. B. Wallace executed a supplemental contract relating to “about 83 acres of cleared land” wherein Vandivort was mentioned as owner and Wallace as lessee. The arrange ment called for payments based on a third and fourth. The contract, signed “C. A. Vandivort, by C. M. Boyd-stun, agent,” bound Wallace to deliver possession of the property at termination of the contract- — the crop year of 1932. There was, however, this paragraph: “ [W. B. Wallace] has a contract of purchase with W. E. Yount, which has been purchased by C. A. Vandivort, (giving the date) and it is agreed . . . that if said contract . . . ' remains in . . . force, then all rentals on the lands described in said contract paid under [this supplemental agreement] shall be credited on the indebtedness or amount due thereunder, leaving- the balance due as called for in said contract. ’ ’
Boydstun testified that W. B. Wallace told him in .1930 that he had a contract with Dr. Yount, and if “they” were able to pay for the land, that 40-acre tract was to go to Everett Wallace and the remaining 60 acres to A. J. and B. A. Wallace. The only agreement Boydstun had with Vandivort covered renting, farm supervision, and related matters, but in January of 1932 he had no right to bind Vandivort on a contract of sale or to conduct such negotiations. Inferences to be drawn from this testimony are that personal knowledge regarding Dr. Yount’s contract of 1929 and Boydstun’s information that Vandivort had succeeded Yount as proprietor prompted Boydstun’s reference to the old contract when the supplement was executed. Boydstun did not inform Vandivort of the content or send his principal a copy, although on cross-examination such assurance of failure was somewhat weakened. Vandivort testified that he did not know of this provision, hence could not ratify it. Furthermore, Boydstun insisted that he exhibited to all of the tenants his letter of limited authority, and told [Wallace] that the contract [relating, presumptively, to the sale] was absolutely worthless without Vandivort’s approval, “and that the burden of getting that was on him. ’ ’
Through various methods of payment and compromise with creditors Vandivort acquired all outstanding claims to the 960 acres, completing payments in 1935 or 1936. The Sturdivant Bank failed in 1932 and its affairs were administered by the Missouri Commissioner of Finance who in turn executed a deed to Yandivort personally. In December, 1942, Vandivort and his wife conveyed to their seven children for a recited consideration of $1 and love and affection.
W. B. Wallace died in 1945, survived by his widow, and by the appellant Everett, and five other children. The widow died in 1949 after this litigation was begun.
The original action by Yandivort’s grantees was forcible entry and detainer, but with other pleadings it became apparent that the justiciable question would be whether the Wallace group could prevail upon their assertions of equitable rights, hence the cause was properly transferred to Chancery, and of course it was not tried on the initial allegation.
Though not conceded by express words, undisputed proof shows that the only cash payment made by any of the Wallaces was the initial $100, although they contend that crop values in excess of the agreed third and fourth, less taxes, insurance, etc., would on a master’s accounting sheet disclose complete liquidation of the purchase price. Abandonment, with citations to specific acts indicating that the Wallaces did not intend to carry out their contract after the depression began late in 1929, and laches, were pleaded.
Touching upon the extent of Boydstun’s authority, counsel for appellant asked his client: “Did you ever have a conversation with Mr. Yandivort about the land: about Mr. Boydstun’s authority?” A. “Yes, sir. [Mr. Yandivort] said he might not get “down [to Craighead County] very often, and for us to talk with ‘Uncle Charlie’ — that’s what he called Mr. Boydstun. ” Q. “And Mr. Boydstun collected all payments made by you and the other tenants in the neighborhood, looked after the land, and discussed the planting of crops with you?” A. “Yes, sir.”
Two additional houses and barns were constructed in the 1930’s, but Yandivort furnished materials and the Wallaces did the work. Most of the land was cleared by appellant and Ms relatives before Yandivort bought for the bank. According to Everett Wallace, be did not ask Vandivort for a deed until 1937, but did repeat the request in 1943. Before the suits were filed appellant bad on one occasion used fertilizer on bis acreage and Yan-divort reimbursed bim for a fourth of the cost. On cross-examination appellant admitted that in November, 1932, be accepted a receipt from Boydstun as agent acknowledging on behalf of himself and bis father that $132.94 bad been paid. The total was evidenced by an adding machine slip penciled, “$36.72 rent.” It was then stipulated that all of the receipts were marked “rent.” At least one cheek, issued in 1942, was given- appellant by Yandivort to reimburse Wallace for money be, bad spent in repairing the bouse in which be lived on the 43-acre tract.
In cross-examining appellant be was asked whether, in September, 1943, be “sold out, ‘lock, stock, and barrel’, to bis brotherPete, [including] tools, team, ungatbered crops, etc., and remained away until January, 1946?” In partially affirming the transactions, appellant admitted the sales, but denied that be was off the place all of the time embraced within the dates. An exhibit offered by appellees was the contract of B. A. (Pete) Wallace dated Nov. 1, 1943, covering 101 acres. Wallace signed as tenant and Yandivort for bis children. It was renewed for 1945.
Particularly during the depression years it was necessary for appellant and bis father to borrow money for crop-making purposes. Funds were advanced by the Bertig Gin Company and others. In July, 1934, Everett, A. J., and B. A. Wallace certified to the U. S. Department of Agriculture, AAA division, that they bad rented lands from Boydstun as agent for Yandivort “for a share of the crop,” and that each was to furnish bis own work stock and equipment “and manage the tract of land which [I] have rented, . . . the landlord to pay for major repairs on the place. ’ ’
In an undated letter to Henry Wallace, Secretary of Agriculture, the three Wallaces in Craighead County said: “LWe] are cotton producers and rent land from an owner and furnisli seed, teams, tools, and labor, and manage the operation of the farm. [We] are interpreted (interested?) in the contract as managing share-tenants, and [were] refused rights to execute a cotton-reduction contract with [our] landowner, Mr. C. A. Vandivort. He has executed a reduction contract without allowing me to sign in § 12. [We] hereby ask that payment be held until we can come to some agreement.”
There was some testimony directed to the relationship between Boydstun and Vandivort, having for its purpose a showing that the agent’s authority was more than that of making rental contracts, collecting crop ap-portionments, and other acts of superintendency. Boyd-stun no doubt assisted those who were cultivating the lands in procuring advances on prospective crops, and to this extent prepared waivers in favor of those making the loans. But the waivers were not signed by Boydstun. On the contrary they were sent directly to Vandivort.
In January, 1934, Vandivort, the Wallaces, and others met at Black Oak to discuss appropriate division of government benefits that were being paid to farmers. The understanding was evidenced by a writing dated the 31st of that month, the introductory sentence being, We, the undersigned landowner and tenant. A. J. and Everett Wallace signed as tenants, and Vandivort as landlord.
W. I. Doyle, who as tenant participated in the Black Oak discussions, testified that in July, following, Vandi-vort was present at the AAA meeting heretofore referred to and signed a waiver “for all of us” to get money for crop production. Vandivort had stated at the meeting that he wanted to collect these benefits “to apply on those deeds for crop production loans. ’ ’ On one occasion when the witness Doyle was with Wallace (presumptively Everett) and Boydstun, Wallace mentioned his desire to buy from Vandivort. This was before Everett left the land — probably in the spring or summer of 1942. Wallace asked Boydstun if the land could be bought and Boydstun said he didn’t know. Wallace then said he was in .a position to pay $4,000 casli for tlie forty [or 43] acres, having arranged to borrow that sum.
Doyle denied an assertion by Wallace to the effect that he (the witness) was present at a meeting between Yandivort and Wallace in 1937 or 1943 when Wallace demanded of Vandivort that a deed to the land be executed. Wallace later told Boydstnn that he had written Yandivort, and that Yandivort replied that he did not want to sell. A copy of Vandivort’s letter to Wallace, dated August 15, 1942, was identified by the writer. In it he said: “I have considered your proposal to buy the forty acres on which you live, [but] think it best that I not sell it. ’ ’
A. J. (Nate) Wallace, Everett’s brother, testified that in 1940 he leased 30 acres of the 100-acre tract, that another brother had 30 acres, “and Everett was living on the other 40.” In August, 1947, H. A. Wallace stated in writing that he had not at any time made a claim of ownership to an interest in the 80-acre tract, either on his own behalf or as an heir of W. B. Wallace. There was testimony that Nate Wallace made similar statements.
On December 20, 1944, W. B. Wallace made an independent landlord-and-tenant contract with Vandivort. By indorsement it was extended to cover 1945.
The record shows a letter of July 12, 1945, marked “Plaintiff’s Exhibit O.” It is written with ink on a penned letterhead, and is addressed to Everett Wallace, and is signed, “C. A. Yandivort.” Appellant’s contention is that it was in response to an inquiry whether the land was for sale. Vandivort testified that he did not write the letter, that it was not written by any of his children, and that he had never had. stationery of that kind. Everett Wallace had testified that he wrote Yan-divort in 1945, asking if the place could be bought. He had seen the property advertised in a real estate office, and wondered why “his” property was being sold.
After the case had been fully developed Chancellor Cherry rendered a decree in favor of the Vandivort inter ests. Before lapse of the term the Chancellor acted favorably upon a motion by counsel for Wallace that the decree be vacated and retrial allowed because, as it was contended, new evidence had been discovered.
This evidence was a contract of June 19, 1934, between Yandivort, Boydstun, and H. M. Cooley. It recited Vandivort’s purchase of the Yount property and disclosed Yandivort’s assent to the statement that Boydstun and Cooley had contracted with Dr. Yount to sell the 960 acres under the arrangement referred to, and contracts were accordingly made. It was Vandivort’s desire that Boydstun and Cooley should “continue their efforts to a final conclusion of sale of all said lands and assist in refinancing the same,” therefore an agency was created. Cooley, as attorney, was to receive a stipulated compensation for the services he had rendered Dr. Yount as attorney, [and for services rendered Yount and Yandi-vort] “in connection with said lands.” The sums so stipulated were to compensate for any services Cooley might render “in connection with handling all matters that may be litigated in the future pertaining to said lands for C. A. Yandivort.”
The amounts so stipulated were to be paid from net proceeds ‘ ‘ derived from the sale of lands that have been sold and that may be hereafter sold, and it is contemplated that C. M. Boydstun shall serve as real estate agent in making sale of the remainder of said lands yet unsold, . . . and for said additional services of [Cooley and Boydstun] in connection with the remainder of said lands and the handling of all matters pertaining to the sale and the legal work,” pay would be as fixed in the contract; and “the amount hereinbefore mentioned shall cover all services by [Boydstun and Cooley] that have been rendered and that may hereafter be rendered until the final completion of the same. It is agreed that all contracts heretofore entered into with the men now on said lands shall be carried out as near as possible between said parties and in the manner as [Yandivort, Boydstun, and Cooley] may deem proper and equitable in connection with said contracts.”
Counsel for the appellant thinks wording of this contract, though admittedly unknown to any of the Wal-laces at the time of its execution, discloses affirmative acknowledgment by Yandivort of his obligations to appellant and his relatives, therefore rental arrangements with Dr. Yount, and the practice continued by Yandivort when he succeeded to the title, should be regarded as expediencies treated at the time as temporary. But, says appellant, whether Yandivort did or did not intend to perform under the Yount contracts, W. B.. and Everett Wallace were on the property when Yandivort took over, and he was charged with constructive knowledge of any claim their possession would support.
Appellees reply that C. A. Yandivort’s understanding of these contracts (and there were contracts with third parties signed by Dr. Yount about the time he dealt with the Wallaces and later) was influenced by the rental agreements; that he assumed from the conduct of W. B. and Ev-erett Wallace that when the “bottom fell out of real estate values” they were anxious to remain as tenants, but were wholly incapable of completing purchase payments, and that they were being accommodated by the novation- — to which would attach an implication of finality insofar' as the obligation to purchase was an element.
In a cross-complaint appellant sought specific performance of the 1929 contract and asked that a master be appointed to state an account.. The pleading, in the prayer for affirmative relief, included all of the property mentioned in Dr. Yount’s contract, and alleged that in defending and prosecuting the plaintiff was acting for himself and “for the use and benefit of other heirs of W. B. Wallace.”
In June, 1947, the defendants moved to dismiss for misjoinder of parties. The motion was overruled by Judge Cherry, but sustained by Chancellor C. M. Buck when the final decree was rendered. It was Judge Buck’s view that the joint contract was not divisible, that W. B. Wallace had no intention of carrying out the contract, nor was such intention evidenced by Wallace’s other named sons after his death. But the Chancellor thought that Everett Wallace, in good faith, had undertaken to comply with his obligations. However, his failure to designate other Wallace heirs as plaintiffs or defendants justified the holding of misjoinder or nonjoinder. Rents for 1946, 1947, 1948, and 1949 for which Everett Wallace should account were found to be $2,567.68, but $2,060.24. of this sum had been paid, bonds and cross-bonds having been executed.
Our conclusion is that the Chancellor’s finding that W. B. Wallace had abandoned his contract is sustained by a preponderance of the evidence; but we think a like finding should he made as to Everett. This makes it unnecessary to determine whether other Wallace heirs were necessary parties.
Even when the Wallace-Yount contract was made, the equitable grantees had notice that a lien-free title might not be obtainable, so there was inserted in the document a paragraph reading: “In the event [Dr. Yount] is unable to secure a release of said lands from mortgages, then [W. B. and Everett Wallace] agree to pay customary rentals. . . .”
Of course if Vandivort had information from which a reasonable man would have concluded that the original parties were not treating the contract as rescinded, liability would attach to successive owners on the ground that possession puts a purchaser on inquiry. Whatever the facts may have been for the years through 1931, there was conduct thereafter to show that the Wallaces were satisfied with tenancy arrangements. Although the mere act of designating landlord and tenant relationships in dealing with the AAA would not be determinative of the .issue, doubtless something more than mere curiosity' prompted appellant to claim that he wrote Yandivort in 1945 asking if the land could be bought.
Certainly the joint protest of Everett, A. J., and B. A. Wallace to the Secretary of Agriculture at Washington was their studied complaint. On cross-examination Everett admitted that he wrote the letter. Presumptively it was mailed in 1934, for its use as an exhibit is followed by transcript references to a pliotostatic copy of a “Landlord Agreement” of July 23, 1934. Everett, A. J., and B. A. Wallace were among those who subscribed as tenants, with Vandivort as landlord.
Although facts in the case at bar are not like those controlling the decision in Harris v. Lemley, 131 Ark. 471, 199 S. W. 373, there is in that case a distinct recognition that one may, as a matter of law, be held to have abandoned a contract.
Abandonment and rescission are words quite often used indiscriminately. The general rule seems to be that the fee owner of realty will not be held to have abandoned his rights unless by some recognized process the title has been divested. In this respect the law is not the same as that applicable to homestead or estates on condition, and it is held that the equitable doctrine of laches or abandonment applies only to easements or licenses and such special rights and abandonment has no application to vested estates; but the title, though not lost by abandonment, might be barred by estoppel or the statute of limitation. Thompson on Real Property, v. 5, pp. 314-15. While failure of vendor and vendee to perform or offer to perform the contract does not alone operate as a mutual rescission, conduct inconsistent with the original intent may — particularly if it is engaged in for a protracted period — disclose the purpose of one or both of the parties as clearly as though there had been express declarations.
Well-reasoned cases hold that as to lands mere temporary absence or nonuser is not sufficient evidence of abandonment, the term “abandonment” having been discussed by the textwriter as a mode of divestiture of title to property in general. American Jurisprudence, v. 1, §§ 1 and 14. In his work on the Law of Real Property, Tiffany says, v. 4, § 962, that surrender by act and operation of law, which is expressly excepted from the Statute of Frauds, is a surrender which the law infers from certain acts by the parties as being inconsistent with the continued existence of [the former status]. In his comments on surrender of estates and interests not neces sarily identical with the one here involved, Tiffany says that the right is yielded by operation of law “when the tenant accepts from the reversioner a new lease, to begin immediately, or at any time during the existence of the previous lease, this result being based on the theory that, by such acceptance, the tenant is estopped to deny the validity of such lease, which nevertheless cannot be valid unless the first lease is terminated.”
The Restatement of Contracts, [v. 2, § 406 (b) (c)] construes the law to be that an agreement to rescind need not be expressed in words. “Mutual assent to abandon a contract, like mutual assent to form one, may be manifested in other ways than by words. Therefore, if either party wrongfully expresses a wish or intention to abandon performance of the contract, and the other party fails to object, there may be sometimes circumstances justifying the inference of assent to a rescission. Sometimes even circumstances of a negative character, such as failure by both parties to take any steps looking toward the enforcement or performance of a contract, may amount to a manifestation of mutual assent to rescind it. . . . The question is not one of words, but of substance. Whether the parties talked of ‘rescission’, ‘release’, ‘discharge’, ‘waiver’, or ‘forgiveness’ of the right is immaterial.” We are not here concerned with the Restatement’s illustration No. 2, p. 771 of vol. 2, where the Statute of Frauds is discussed. In the case at bar there is written evidence of appellant’s intentions in dealing with the property.
In circumstances strikingly similar to the case at bar, except that notice of forfeiture had been served, it was held that the purchaser of land under an executory contract who after making the initial payment defaulted had abandoned. Several years after the contract was made the parties entered into an agreement whereby Harms, the purchaser, leased the property from Boyn-ton, the seller. The Supreme Court affirmed a holding by the circuit judge that the lease was obtained without fraud, and that Harms’ execution of it and occupancy of the land thereunder constituted a surrender of what ever rights he formerly had. Miner v. Boynton, 89 N. W. 336, 129 Mich. 584. The same appellate court, in affirming Dundas v. Foster, 274 N. W. 731, 281 Mich. 117, reached a like result in 1937, but there, again, notice of forfeiture had been given.
Cases are cited by the textwriter, Vendor and Purchaser-Abandonment, Corpus Juris, v. 66, pp. 730-31, sustaining the summary that conduct from which intent may be clearly inferred is the controlling consideration, and this is a question of fact.
Where the parties made a new contract, containing no reference to the former agreement, the original was held to have been abandoned. Weaver v. Propst, 28 S. W. 2d 872. The decision was by the Texas Court of Civil Appeals. Likewise, a second sale of property without objection from the equitable grantee was treated in Iowa as a mutual abandonment of the first contract. Miller v. McConnell, 179 la. 377, 157 N. W. 943, [rehearing denied, but opinion modified, 161 N. W. 461].
Applying these principles to the case at bar, appellant must lose. While there is some argument that the contract between Vandivort upon the one hand and Boyd-stun and Cooley on the other recognized the Yount commitments of 1929 as late as 1934, the explanations by these three parties that other contracts were contemplated and that Vandivort’s seeming purpose at all times was to treat the rental or lease contracts as responsive to the wishes of all the Wallaces — these and many other facts and circumstances point clearly to acquiescence in the substituted status, continuing from 1932 to 1945.
Affirmed.
Appellant filed a supersedeas bond, but paid $2,060.24, leaving an apparent balance of $507.44, plus the value of Í949 crops un-gathered or undisposed of when the cause was submitted. Because uncertain computations must be made, the cause is remanded for the single purpose of determining what amount is still chargeable against appellant and his bondsmen. | [
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George Rose Smith, Justice.
The appellant, Transport Company, and its wholly owned subsidiary, Southern Transport, Inc., are motor carriers transporting petroleum products in intrastate commerce in Arkansas. Prior to the present proceedings the parent company was an authorized common carrier, but its certificate of authority limited it to the transportation of commodities along specified highways, most of which radiated from Little Rock to other parts of the state without connecting with one another at the far ends. The subsidiary company was a contract carrier engaged primarily in transporting asphalt (a petroleum product) along a different set of highways.
In this case Transport, the parent company, applied to the Arkansas Transportation Commission, a nominal appellee here, for the removal of certain restrictions in Transport’s certificate, so that it could operate over any and all highways to and from all points within the state. The applicant contemplated that its subsidiary company would be dissolved if the Commission granted the application, thereby enabling Transport to perform as a common carrier the services that the subsidiary had been performing as a contract carrier.
Transport’s application was protested by two competing carriers, Arkansas Transport Company and Earl Gibbon Transport. After a hearing at which much testimony and many exhibits were introduced, the Commission granted Transport’s 'application. Arkansas Transport appealed to the Pulaski Circuit Court, where the Commission’s order was set aside as being against the weight of the evidence. Transport brings the case to us, with Arkansas Transport as the real appellee.
At the outset Arkansas Transport renews its insistence that all proof pertaining to the subsidiary company’s operations be disregarded, because that corporation was not a party to Transport’s application. The Commission was right in rejecting that contention. The Commission is not bound by technical rules of pleading and evidence, its mission being to ascertain the facts bearing upon the right and justice of the matters before it. Ark. Stat. Ann. § 73-127 (Repl. 1957). At the hearing the subsidiary’s authorized representative announced that the subsidiary joined in Transport’s application and that upon the granting of that application the subsidiary would surrender its permits to the Commission and merge assets through an appropriate plan approved by the Internal Revenue Service. Arkansas Transport did not plead surprise or ask for a continuance, doubtless because substantially all the applicant’s proof had been disclosed in exhibits filed before the hearing. Thus the objection is purely a technical one, having no bearing upon the merits of the controversy.
We are firmly of the opinion that the Commission was fully justified by the weight of the evidence in granting Transport’s application. It must be kept in mind that only a few years ago the appellee Arkansas Transport obtained for itself the same broad authority to operate over irregular routes throughout the state that the appel lant is now seeking. See Wheeling Pipe Line v. Arkansas Commerce Commn., 249 Ark. 685, 460 S.W. 2d 784 (1970), where Arkansas Transport prevailed. In the case at bar the Commission went to the heart of the matter in these two sentences in its report and order: “The carrier that is limited to a regular route operation cannot compete cost-wise with the carrier authorized to transport the same commodities between the same points over a shorter irregular route at the same level of rates required by law to prevent undue preferences or advantages and unfair or destructive competitive practices. The carrier that is restricted to regular routes involving greater distances is subjected to unfair competitive advantage resulting, in effect, in wasted • transportation and robbing him of the right to compete for traffic between the same points on the same class of traffic.”
Illustrations taken from the facts in the record will demonstrate the wisdom of the Commission’s position. Transport, when it filed its present petition, was authorized to pick up petroleum products at a distribution station in West Memphis, for example, and deliver them to customers in Marianna, only 48 miles away by the most direct route. But Transport was not authorized to travel that particular highway. To render that service it would have to travel west from West Memphis to Little Rock along one highway and then east to Marianna along another highway, the total distance exceeding 200 miles. It would have to travel even farther, by way of Little Rock, to make a delivery from West Memphis to Earle, although both those cities are in Crittenden county, about 25 miles apart. There is no limit to the number of similar instances that resulted from Transport’s being restricted to the use of certain specified highways radiating from Little Rock.
The Commission was undeniably right in stressing the "wasted transportation” that would have continued had the application been denied. When the Commission announced its decision the threat of a national energy shortage was not as well publicized as it is today, but now the threat is a matter of such common knowledge that we cannot ignore it. Neither in its brief nor in its oral argument has the appellee suggested any sound basis for the wasteful practices that were relieved by the Commission’s order. It may well be that those practices were justified in past years, when the public rules and regulations were being developed, but the situation that exists today obviously demands a re-examination of principles that were formerly regarded as controlling.
In fairness to the appellee and the circuit court we should add that even without reference to the energy shortage we do not find the Commission’s decision to be contrary to the weight of the evidence. The energy situation, however, makes it unnecessary for us to discuss at length the persuasive proof showing that the additional service proposed by the applicant will benefit the general public (Santee v. Brady, 209 Ark. 224, 189 S.W. 2d 907 [1945]) by providing a more flexible service at less cost than has been the case heretofore. Neither need we dwell in detail upon other proof that was before the Commission, such as the fact that Arkansas Transport was not itself engaged in the transportation of asphalt and the fact that at the time of the hearing Arkansas Transport had not established a terminal at Fort Smith, even though it had promised to do so four years earlier in the proceeding that reached us in the Wheeling case, supra. It is enough for us to say that we do not find the Commission’s decision to be against the preponderance of the proof.
Reversed.
Harris, C.J., not participating.
Fogleman and Byrd, JJ., concur. | [
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John I. Purtle, Justice.
Appellant was convicted as an accomplice to capital murder, hindering apprehension or prosecution and of being an habitual offender. He was sentenced to death for felony murder and to 40 years imprisonment for hindering apprehension or prosecution. On appeal appellant argues 14 points; they will be set out in the body of this opinion. We do not find any prejudicial error but by comparing we reduce appellant’s death sentence to life without parole.
The appellant and Rodney Britton were together on the date the West Fork Chief of Police was killed. Britton had spent a few days camped out on the farm where appellant lived with his mother near Mountainburg, Arkansas. On March 20, 1981, the appellant and Britton spent the day in and around the City of Fayetteville. Shortly after 9:00 o’clock p.m. on that date the Pizza Hut North in Fayetteville was robbed by an armed intruder. Subsequently Britton was identified as the man who robbed the Pizza Hut North. Appellant stated that he and Britton were at a cafe in Fayetteville at 9:00 p.m. on the date in question, but that Britton borrowed another car and was gone for about 20 minutes. Appellant contended that when Britton returned he obtained the keys to appellant’s car, opened the trunk, placed a jacket in the truck and took out one of another color and put it on. Shortly after 10:00 p.m. Britton and appellant headed south on U.S. Highway 71, toward Mountainburg, when they stopped at a service station in West Fork to obtain gas. The service station attendants were in the process of closing and refused to sell them any gas. At that time appellant, who had been driving, got out of his car, walked around to the passenger side and Britton moved over to the driver’s position. The facts indicate appellant had been drinking and also taking medicine for heart disease. He gave the appearance of being intoxicated because the attendants stated he staggered when he walked around the car. After the car pulled away an attendant notified Chief Paul Mueller that the occupants of the car appeared to be drinking. Chief Mueller then proceeded south on Highway 71 in an attempt to overtake the car. Mueller caught up with the suspects and using his bluelight pulled them over the side of the road. While making the stop he radioed that the parties in the vehicle were acting “squirrely.” That was his last message. After he stopped the car the appellant got out of the passenger side and started back toward the officer’s car when Chief Mueller told him to get back in the car, stating he wanted to talk with the driver. Britton then got out of the driver’s side and immediately four shots were fired. A nearby resident testified that the first two shots were louder than the second two shots. Britton was using a .44 caliber magnum pistol and Chief Mueller had a .38 caliber magnum pistol. Chief Mueller was shot twice by Britton and apparently the chief fired one round which struck the appellant in the back. The other bullet fired by the chief hit the trunk and passed into the passenger compartment of appellant’s vehicle. A witness arrived on the scene as Britton was driving appellant’s car away. The witness found Chief Mueller, with pistol in hand, dying on the shoulder of the road in front of his vehicle. At that time appellant was in the edge of a ditch. The wounds to appellant turned out not to be too serious.
Back-up officers arrived on the scene within a matter of minutes and one of them, armed with a shotgun, approached appellant who stated: “Don’t shoot, I surrender,” or “Don’t shoot, I give up” or “Don’t shoot, I’ve been shot.” Appellant stated to police officers at the hospital that he did not know the identity of Britton who he stated was a hitchhiker. Appellant’s vehicle was found a mile or so down the road, out of gas. It was towed to the police department and searched without either a warrant or asking the appellant for permission to search the vehicle. The search produced, among other things, a green money bag which was identified by the employees of the Pizza Hut as one which was used in the robbery of that establishment. Officer Doug Fogley, who conducted the search, knew that appellant was in the hospital in Fayetteville at the time of the search. Fogley also administered a trace metal detection test on appellant and determined that he had not handled a gun that evening. The following morning Fogley and four other officers interrogated appellant in the intensive care unit of the Veterans Administration Hospital in Fayetteville. The interrogation was conducted with the consent of the attending physician. During this interrogation appellant indicated that he had picked up Britton as a hitchhiker. (Britton was killed several days later in a shootout with the police not far from the scene of the death of Chief Mueller.)
During the trial it was established that Britton and appellant had become acquainted while serving time together at Leavenworth Federal Penitentiary. There was no dispute but that appellant knew the identity of Britton when he said he did not know him. Appellant was allowed to serve as co-counsel during his trial. After his conviction as an accomplice to capital murder and hindering apprehension and prosecution he was allowed to address the jury on the penalty phase. During this argument he requested that the jury give him the death penalty rather than life imprisonment. The jury obliged.
I.
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT’S MOTION FOR SEVERANCE OF THE OFFENSES OF HINDERING APPREHENSION AND ACCOMPLICE TO CAPITAL MURDER.
The evidence clearly indicated that it was Britton who fired the shots which killed Chief Mueller. There was no direct evidence that appellant actively assisted in the shooting of the officer. Our established law is that granting or refusing a severance is within the discretion of the trial court. Ruiz & Van Denton v. State, 273 Ark. 94, 617 S.W.2d6 (1981). A.R.Cr.P. Rule 22.2 (b) states:
(b) The court, on application of the prosecuting attorney, or on application of the defendant other than under subsection (a), shall grant a severance of offenses:
(i) if before trial, it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense . . .
Pursuant to the foregoing rule the trial court determined that it was not necessary to grant a severance in order to promote a fair determination of the defendant’s guilt or innocence. The facts necessary to prove the offenses would almost all be required in each trial if a severance were granted. Evidence of the Pizza Hut robbery was found in appellant’s car. This evidence would be used in both trials, as would other acts and evidence, to establish a plan, scheme, motive or state of mind. The conduct of appellant, both before and after the murder, would be admissible for the purpose of showing a plan or scheme. A.R.Cr.P. Rule 21.1 (b) provides that offenses may be joined for trial when they are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan. Owen v. State, 263 Ark. 493, 565 S.W.2d 607 (1978). The trial court did not abuse its discretion in refusing to sever the offenses in this case.
II.
THE TRIAL COURT ERRED IN FAILING TO DIRECT A VERDICT.
The appellant argues that the evidence was insufficient to support the conviction of capital murder. We realize that the evidence is primarily circumstantial but it was of such force that it would induce the mind of the average person to pass beyond suspicion and conjecture. It was of sufficient force and character to support a finding of reasonable and material certainty and to compel a conclusion one way or the other. Jones v. State, 269 Ark. 119, 698 S.W.2d 748 (1980).
The evidence revealed that appellant and Britton had been together most of the day and that both were present at the time of the shooting of Chief Mueller. They were in appellant’s automobile and evidence of the robbery of the Pizza Hut was found in the automobile which was owned by the appellant and driven by Britton. Several witnesses testified as to the association of appellant and Britton while they were at Leavenworth. Most of the witnesses indicated that appellant was not a friend of Britton’s. One inmate from Leavenworth testified that he had observed Britton and appellant discussing legal matters as they ate together at Leavenworth. Appellant was released from Leavenworth prior to Britton’s release. Britton arrived at appellant’s residence on March 15, 1981. He stayed in or around the appellant’s residence until the death of Chief Mueller on March 20,1981. Appellant falsely told the officers that he did not know Britton. There is considerable other evidence supporting the finding that appellant and Britton were acting together at the time of the death of Chief Mueller. It is the province of the jury to determine the credibility of the witnesses. Riddick v. State, 271 Ark. 203, 607 S.W.2d 671 (1980). The jury is free to disregard the testimony of the appellant if it so chooses. Core v. State, 265 Ark. 409, 578 S.W.2d 581 (1979). This court will not disturb the jury’s findings regarding credibility of the witnesses. Wright v. State, 177 Ark. 1039, 9 S.W.2d 233 (1928).
Ark. Stat. Ann. § 41-303 (Repl. 1977) defines accomplice as a person who solicits, advises, encourages or coerces the other person to commit the crime or who aids, agrees to aid, or attempts to aid the other person in planning or committing it. Also, if the person has a duty to prevent the commission of an offense and fails to make a proper effort to do so, he is an accomplice. Bowles v. State, 265 Ark. 457, 579 S.W.2d 596 (1979). A person need not take an active part in a murder to be convicted of such if the person accompanied the person or persons who actually committed the murder and assisted in such commission. Hallman & Martin v. State, 264 Ark. 901, 575 S.W.2d 688 (1979). Our capital murder law is codified as Ark. Stat. Ann. § 41-1501 (Repl. 1977) which states in part:
(1) A person commits capital murder if:
(b) with the premeditated and deliberated purpose of causing the death of any law enforcement officer, jailer, prison official, fireman, judge or other court official, probation officer, parole officer, or any military personnel, when such person is acting in line of duty, he causes the death of any person; or . . .
A review of the record confirms that the jury could have properly found the appellant guilty as an accomplice in causing the death of Chief Mueller.
III.
THE TRIAL COURT ERRED IN ADMITTING THE STATEMENT, “DON’T SHOOT, I GIVE UP.”
During the trial Officer Price testified that when he first approached Henry at the scene where Chief Mueller was killed, Henry, who was lying on his back stated: “Don’t shoot, I give up.” The appellant argues that his statement was “Don’t shoot, I’ve been shot.” The jury had the right to decide which statement to believe. Appellant’s objection to the statement is that it was not provided in response to his motion for discovery. It is conceded by the state that it was not provided to the defense. The prosecutor contended the state itself did not know the statement had been made until revealed in the testimony at trial. The defense had timely entered its motion for discovery pursuant to A.R.Cr.P. Rule 17. We do not find any evidence that the state deliberately avoided obtaining this information in order to have it presented at trial. Under Rule 19.7, it is up to the trial court to decide whether such a statement should be admitted. Appellant knew that Officer Price would be a witness and his counsel had the right and duty, time permitting, to interview the officer and perhaps discover what the officer was going to say at the trial. Appellant relies on the case of Williams v. State, 267 Ark. 527, 593 S.W.2d 8 (1979), for the argument that the statement should be excluded. In Williams, the state found out about other statements, which had not been furnished the defense, the day before trial. The information was not furnished to the defense until after voir dire of the jury. We reversed and stated: “There is no doubt, then, that the police officer knew of the statement. That knowledge is imputed to the prosecuting attorney.” In the present case the state and the defense found out about the statement at the same time. We find that it was not prejudicial error for the trial to continue after Officer Price made his unexpected statement. Furthermore, we cannot say with any degree of certainty that the statement was either inculpatory or damaging to appellant’s defense.
IV.
THE DEATH PENALTY IS UNCONSTITUTIONAL IN THIS CASE.
Appellant argues that an accomplice who did not participate in the actual murder should not receive the death penalty. In Collins v. State, 261 Ark. 195, 548 S.W.2d 106, cert. den. 434 U.S. 878, rehearing denied 434 U.S. 977 (1977), we discussed this court’s responsibility in reviewing death cases as they relate to other death cases. In Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981), we also made a comparison of the sentence which had been imposed since Collins. We reviewed Sumlin’s death sentence and compared it with that of life imprisonment without parole which had been given to his wife in the same case. We reduced Sumlin’s death sentence to life without parole. We cannot compare appellant’s sentence to that of Britton because he was killed by police officers soon after the murder. After comparing it with other death sentences and sentences of life without parole, we find that appellant’s sentence should be reduced from death to life without parole for two reasons: (1) the evidence is overwhelming that he was merely an accomplice and did not personally fire the fatal shots, and (2) the jury may have sentenced him to die out of passion and prejudice because the main actor in the murder could not be tried.
V.
THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION CHALLENGING THE DEATH QUALIFICATION OF PROSPECTIVE JURORS.
Appellant readily admits that we have previously rejected the argument that a death qualified jury is impermissible. Lasley v. State, 274 Ark. 352, 625 S.W.2d 466 (1981). We are at this time still of the opinion that such qualification is constitutional.
VI.
THE TRIAL COURT ERRED IN ITS RULING TO ALLOW IMPEACHMENT OF DEFENDANT BY USE OF A PRIOR ROBBERY CONVICTION.
Perhaps no other rule of evidence or law has given us so many problems as Rule 609. Appellant properly brought the matter of the prior robbery conviction to the attention of the court through a motion in limine. The court overruled the motion and allowed the state to question appellant about a prior robbery conviction. In Jones v. State, 274 Ark. 379, 625 S.W.2d 471 (1981), we stated:
The Uniform Rule [609] unquestionably changed the Arkansas law, which formerly permitted proof of a conviction of any felony to impeach a witness’s credibility ... [t]he Uniform Rule is specifically directed to the conviction’s probative value with respect only to credibility . . .
Evidence of prior criminal convictions is not admissible to bolster the prosecution’s case by showing that the accused is a bad person but is limited for the purpose of discrediting the witness’s testimony. We think the rule, as it presently stands, is as stated in Floyd v. State, 278 Ark. 342, 645 S.W.2d 690 (1983): “... the probative value must be weighed against the prejudicial effect when evidence of prior convictions is admitted.” We think that the court did not abuse its discretion in weighing the prejudicial effect against the probative value of allowing the prior conviction to be used for impeachment purposes. In the present case the appellant himself repeatedly mentioned his prior conviction during the course of the trial and this would constitute a waiver under the circumstances.
VII.
THE TRIAL COURT ERRED IN REQUIRING THE APPELLANT TO BE TRIED WHILE INCOMPETENT TO STAND TRIAL.
The appellant did not raise the defense of mental disease or defect in the trial court. After both sides had rested appellant submitted a medical record to the court which revealed he had been referred to a consulting psychiatrist at the Veteran’s Administration Hospital in Fayetteville. Appellant, who was acting as co-counsel, stated he did not think it was relevant but wanted it in the record anyway.
We think this evidence is insufficient to raise the question of the appellant’s mental capacity to stand trial. The burden of proving incompetence is on the defendant in a criminal trial. Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979). Additionally, the appellant did not abstract the report or offer any discussion about it which would allow consideration. He did not contend below that he intended to raise mental disease or defect as a defense, and gave no notice as required by Ark. Stat. Ann. 41-604 (Repl. 1977). We cannot consider a matter raised for the first time on appeal. Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980).
VIII.
IT WAS ERROR TO ADMIT CHIEF MUELLER’S RADIO TRANSMISSION.
The statement by the decedent over his police radio that the appellant and Britton were “acting squirrely” is hearsay pursuant to Arkansas Uniform Rules of Evidence, Rule 801. Even though the statement was inadmissible, we do not find it to have been prejudicial. We cannot imagine how this statement could have affected the jury one way or the other as to appellant’s guilt or innocence of the crime for which he was charged. There was no prejudicial error under this point, even though the transmission should not have been admitted into evidence.
IX.
IT WAS ERROR TO DENY APPELLANT’S REQUEST FOR CERTAIN SUBPOENAS.
Appellant sought to have summons issued for John Logan, an inmate at Leavenworth, and unnamed persons from the Cummins Unit of the Arkansas Department of Correction. He alleges that Logan would testify that Britton had a list of people which he intended to kill and that appellant was on the list. He also sought the unnamed Cummins inmates’ attendance for the purpose of testifying that if they had used dogs the officers would have been able to track Britton down immediately. He argues that the information he gave the officers would have enabled dog handlers to have located Britton immediately. The court ruled that Logan’s testimony was not material and that the testimony of the Cummins inmates was also irrelevant. Several witnesses from Leavenworth were subpoenaed and brought to the trial. Ark. Stat. Ann. § 43-2001 (Repl. 1977) provides that a defendant shall be entitled to have unlimited witnesses subpoenaed in a capital murder case. However, this right is not absolute when it pertains to out-of-state witnesses. Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1979). We find that there was not a manifest abuse of the court’s discretion in this case. The appellant did not furnish any information which indicated that these witnesses were material to the defense of accomplice to felony murder and the court specifically ruled on relevance. Therefore, we do not think the appellant was prejudiced by the action of the court.
X.
IT WAS ERROR TO ALLOW OFFICER PRICE TO TESTIFY THAT THE APPELLANT STATED “I GIVE UP” AT THE TRIAL.
Appellant insists that allowing this statement was a violation of the rule set down in Miranda v. Arizona, 384 U.S. 436 (1966). We treated this statement under the appellant’s Point III. However, we hold that the statement was not a result of questioning by the police but rather was in the nature of a spontaneous explanation. The appellant was neither in custody nor subjected to interrogation at the time of this utterance. Even if he were in custody, a spontaneous statement would be admissible. Rhode Island v. Innis, 446 U.S. 291 (1980). See also Murry v. State, 276 Ark. 372, 635 S.W.2d 237(1982).
XI.
IT WAS ERROR TO ADMIT EVIDENCE OF THE ROBBERY OF THE PIZZA HUT.
Appellant argues that the court erred in admitting evidence about the robbery of the Pizza Hut and insists that it violates Uniform Rules of Evidence, Rule 402 and Rule 403.
Rule 402 provides that all relevant evidence is admissible except as otherwise provided by statute or rule. Rule 403 provides that relevant evidence which is unfair, prejudicial, confuses the issue, misleads the jury, or is a waste of time may be excluded. However, the court admitted this evidence pursuant to Rule 404 (b). This rule provides that evidence may be admissible for the purpose of showing “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Admittedly, there is no proof that appellant was at the scene of the robbery of the Pizza Hut. However, evidence found in his vehicle definitely tended to show that the person or persons who robbed the Pizza Hut were in appellant’s car shortly after the robbery. This evidence was ruled to be relevant in regard to appellant and Britton having a motive to kill Chief Mueller when he pulled them over; the motive being fear of discovery of the Pizza Hut robbery evidence. We have held many times that such evidence is properly admitted. Williams v. State, 276 Ark. 399, 635 S.W.2d 265 (1982); Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982). Therefore, we find there was no prejudicial error in allowing evidence of the Pizza Hut robbery to be presented in this case.
XII.
THE COURT ERRED IN FAILING TO SUPPRESS CERTAIN EVIDENCE.
Evidence connecting appellant to the robbery of the Pizza Hut was obtained when his automobile was searched about two hours after the death of Chief Mueller. The car had been driven from the scene of the killing by Britton. Appellant told the officers the car had been stolen. At the time of the search the vehicle was in possession of the officers and the appellant was in the emergency room or the intensive care unit of the hospital. Since appellant indicated that the automobile was no longer within his custody or control, he did not have a protected interest which would prevent seizure of articles found in the vehicle. We have held that it is permissible for police to search an abandoned vehicle, especially if it is one from which a suspect flees to avoid apprehension. Pickens v. State, 261 Ark. 756, 551 S.W.2d 212 (1977), cert. den. 435 U.S. 909 (1978). The police obviously had reason to suspect that the vehicle might contain evidence which would reveal the identity of the hitchhiker who had allegedly stolen the vehicle and who was still at large. The circumstances of this case further reveal that the officers might well have believed that appellant was unable to give information about the vehicle or consent to its search. We recognize that the state has the burden of justifying a warrantless search of a vehicle. An automobile does not enjoy the same constitutional prohibition that a home does in all situations. Vinston v. State, 274 Ark. 452, 625 S.W.2d 533 (1981). An automobile has become an exception to the Fourth Amendment’s protection in cases where exigent circumstances exist. Chimel v. California, 395 U.S. 752 (1969). The circumstances here were that an unknown murder suspect was still at large and probably in the vicinity of West Fork. We think the police did not act improperly in the search of the automobile under the circumstances present in this case.
XIII.
IT WAS ERROR TO ADMIT CERTAIN STATEMENTS INTO EVIDENCE.
It is argued that statements by a security guard at the Veteran’s Administration Hospital were improperly admitted. At the time appellant was admitted to the hospital he was not under arrest nor was it known by the personnel at the hospital that he was even a suspect to a crime. The guard was dressed in a uniform similar to that of a police officer. However, he did not investigate this incident at all.
The statements made to the guard were not the result of questions by the guard but were, rather, voluntary statements on the part of the appellant. Appellant did not deny that he made the statements but wanted to have them excluded as having been given in violation of his right to remain silent. The courts have never gone so far as to exclude statements given by an accused which were voluntarily made before he was considered a suspect in a criminal act. There simply is no precedent cited for this argument. We have been unable to find a case wherein a voluntary statement given prior to the time that the person is suspected of a crime is in violation of his constitutional rights. Therefore, there is no error in regard to this point.
XIV.
IT WAS ERROR TO ADMIT STATEMENTS MADE BY APPELLANT.
Appellant insists that he did not voluntarily, knowingly and intelligently waive his rights at the time he made statements to police officers investigating the killing of Chief Mueller. The voluntariness of a custodial statement must be proven by the state. Degler v. State, 257 Ark. 388, 517 S.W.2d 515 (1974). Appellant was given a Miranda warning about 7:15 a.m. on March 21, 1981. This was some eight or nine hours after the death of Mueller. The appellant primarily relies upon his physical condition and the medication he was receiving to refute the idea that he voluntarily and knowingly executed the rights form and gave the statement. It is true that he had been taking a variety of medications, including codeine and valium. Appellant was being administered fluids and antibiotics intravenously as well as by mouth. Also, he was connected with a heart monitor. We think the medication and devices which appellant was subject to were less than those in the case of Mincey v. Arizona, 437 U.S. 385 (1978). In Mincey, tubes were inserted into his throat to help him breathe and through his nose into his stomach to keep him from vomiting. He had a catheter inserted into his bladder, and was undergoing intravenous feeding in addition to being administered several drugs. The Arizona court refused to allow a statement given under these circumstances in the prosecution’s case in chief but did allow it for impeachment purposes. Dr. Brannon testified at the time the statement was taken the that the appellant was to some degree under the influence of medications but that he thought he was fully capable of understanding and giving a statement. The rights form was executed and the statement given while the appellant was in the intensive care unit. He had not been arrested and was not in custody. However, we find that the statement would be admissible even if appellant had been in custody. The officers first received the permission of the doctor to interview the appellant. It was the doctor’s testimony that appellant’s ability to think clearly was not significantly impaired; otherwise, he would not have allowed questioning by the officers. His testimony was that the medications might have affected appellant’s alertness but that it would not hinder his ability to clearly communicate or understand. It was the doctor’s opinion that there was nothing about appellant’s physical or mental condition which would prevent him from understanding the nature of the interrogation and his right to refuse to cooperate. We hold that the appellant’s statement and waiver were knowingly, voluntarily and intelligently given.
XV.
OTHER ADVERSE RULINGS.
We have reviewed the record for other rulings adverse to the appellant and find none which would constitute prejudicial error.
Therefore, the sentence of death as an accomplice to capital murder will be reduced to life without parole and the judgment is otherwise affirmed.
Affirmed as modified.
Hickman, J., concurs.
Adkisson, C.J., dissents. | [
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McHaney, J.
This is a suit by appellant as a minority stockholder in the Forest Park Corporation, a holder of class B preferred stock therein, against appellees, J. W. Sloan, Forest Park Corporation and the Thompson Oil & Gas Company, growing out of the alleged mismanagement of the affairs of said Forest Park Corporation by Sloan as its president and its board of directors. A summer resort known as Forest Park, near Siloam Springs, was promoted by J. K. Livingston. The corporation owning and operating the property under Livingston’s management was known as the Ozark-Company. It became heavily indebted to numerous creditors, including appellant, Mazda Oil Corporation, of which Julius Livingston, brother of said J. K. Livingston, was president, Mrs. A. M. Livingston, mother of J. K. and Julius, appellee Sloan, and others holding mechanics’ and vendors’ liens on, different portions of the Forest Park properties. Appellant held a mortgage on the property subject to the prior liens. When it sought to foreclose its mortgage, 'an involuntary bankruptcy proceeding was instituted against the Ozark Company. Thereafter, while the matter was pending in bankruptcy, the principal creditors or their representatives got together and formulated a plan for refinancing the indebtedness of the Ozark Company, which resulted in a written agreement ■ as follows:
“Agreement of creditors of the Ozark Company whereas, The Ozark Company, a corporation, organized under the laws of the State of Arkansas, is the owner of certain real property situated in the counties of Benton, State of Arkansas, and, Adair, State of Oklahoma, respectively, together with certain personal properties situated thereon and appurtenant thereto, comprising a single project or enterprise in the aforesaid counties, known to the public as Forest Park, and
“Whereas, the Mazda Oil Corporation, the owner and holder of real estate and chattel mortgages securing the payment of approximately $106,500, and also has a claim against the Ozark Company, unsecured, in the sum of approximately $3,500, the total of both claims, including accrued interest, amounting to approximately $110,-000, the aforesaid corporation being hereinafter referred to as The Mazda, and,
“Whereas, certain other creditors of the said The Ozark Company are the holders of liens claimed to be prior to the mortgage lien of The Mazda, covering certain of the property hereinafter referred to, amounting to approximately $85,000, said lien claim creditors being hereinafter referred to as ‘lien creditors,’ and
“Whereas, there are numerous unsecured creditors of the said The Ozark Company, whose claims of indebtedness aggregate the approximate sum of $184,000, which creditors will hereinafter be referred to as the ‘general creditors,’ and
“Whereas, there is now pending in the United States District Court for the Western District of the State of Arkansas, sitting at Fort Smith, an action for the foreclosure of the said mortgages of The Mazda, subject to the prior lien rights of the mortgagees, and such of the lien creditors as have prior rights to The Mazda, and
“Whereas, said enterprise is in the nature of a summer resort and playground for tourists, and has heretofore been extensively advertised as such and the properties constituting the same have been so co-ordinated as to constitute one single and individual integral enterprise of such character that the foreclosure of any of the aforesaid liens would so destroy the integrity of the enterprise as to render the balance of said property practically valueless for the purpose for which it has been developed, and for any purpose which might subserve the interest of the various parties connected therewith, including each of the above described classes of creditors, and
“Whereas, it is the mutual desire of each, every and all of said parties interested in said enterprise to avert the depreciation and value thereof by the interposition of any action which may possibly be circumvented, and to this end The Mazda is willing to waive its claim of priority on condition that the other parties interested, or so many thereof as shall subscribe to such agreement, as shown by audit of Peat, Marwick & Mitchell, auditors, shall consent to join with The Mazda in agreeing to turn over each, his or its, respective interest to a trustee hereinafter provided for, for the re-organization of the assets of said enterprise, as hereinafter more fully set forth.
“Now, therefore, it is agreed and consented to by each o,f the undersigned, that W. J. D. McCarter shall act as trustee, hereinafter referred to as trustee, whose duty it shall be to procure the assent of so many of the parties interested in said enterprise as he can, upon the conditions and terms heretofore and hereinafter set forth.
“It is proposed that said trustee shall incorporate under the laws of the State of Arkansas, unless it be found necessary to incorporate under the laws of some other State, the corporation to be organized to have an authorized capital of 600,000 shares of common stock, no par value, with an authorized preferred stock of two classes, to-wit Class A and Class B—Class A preferred stock shall consist of 60,000 shares of par value of $5 per share, and Class B in the sum of $200,000 of the par value of $5 per share. Classes A and B preferred stock to be issued and disposed of as hereinafter set forth. Class A preferred stock of the new corporation shall bear an annual dividend of 7 per cent, cumulative each year, and Class B shall bear an annual dividend of 7 per cent, noncumulative. Out of Class A preferred stock there shall be issued and delivered to the creditors hereinabove referred to as ‘lien creditors,’ so much of said stock as will satisfy their liens dollar for dollar, and in addition thereto shall be issued and delivered to each of said lien creditors five shares of common stock, no par value, with each share of Class A preferred; the remaining Class A preferred stock shall remain in the treasury of the new corporation, subject, however, to be issued and disposed of for the purpose of obtaining funds for the development and for the carrying on of the business of said corporation, subject, however, to this proviso. That if and when there shall have been issued in excess of $200,000 of Class A preferred stock, which shall include all stock issued to lien Creditors, it shall be agreed that 25 per cent, of the net proceeds of-the further„sale of Class A stock shall be used to retire that portion of Class B stock to the amount equal to 25 per cent, of the net proceeds thereof. This retiring feature for Class B stock shall be in addition to any other arrangements .made for the retiring of this Class B stock.
“It is further agreed that, in lieu of The Mazda releasing its mortgage, that there shall be issued to it and to A. N. Livingston Class B preferred stock, in the amount of their respective established claims.
“That said Mazda, and each and every creditor, upon the signing of this instrument, or as soon thereafter as required by the trustee, shall surrender its, or his, respective claim or claims to said trustee, on receipt duly signed by said trustee obligating him, upon the organization of said new corporation, to issue to each stock of the new corporation as hereinabove and hereinafter provided for.
“It is further agreed that, out of the common stock of no par value, there shall be issued to the general creditors shares of stock in the following proportion: for each dollar due the creditor there shall be issued a share of common stock of said corporation, of no par value.
“It is understood that by the word ‘claim’ is meant the claim as established by the audit of Peat, Marwick & Mitchell, recently completed. In the event that there is any dispute over the audit as made by the above-named auditors, said claim shall be submitted to the board of directors of the new corporation and adjustments made according to the facts of the case.
“The Mazda further agrees that there shall be a resolution by its board of directors consenting to and agreeing that its mortgages shall be assigned to the trustee for the purposes heretofore and hereinafter set forth in said contract.
“It is further agreed that both Class A and B stock shall be retired in the following manner: A minimum of 25 per cent, of the net earning from any and all sources shall be applied to retire both Class A and Class B in proportion to the amount outstanding at the same time, immediately after the annual meeting each year, and, in case of a bond issue, 50 per cent, of the net proceeds, when realized, or so much as may be necessary, shall be used to retire both Class A and Class B stock in propor tion to the amount outstanding. The above agreement shall be provided for in the minutes of the new corporation and on the stock certificates.
“It is further agreed that, after said corporation has been formed, that the trustee hereunder shall take the necessary steps to have the said corporation issue to the various creditors stock in accordance with this agreement, both preferred and common, and see that the corporation shall call a meeting of all the stockholders of the common stock of said corporation by giving to them .................days’ written notice, unless the said stockholders shall have waived the notice, and to see that the by-laws of said corporation shall be so prepared and adopted as to entitle the holders of record to vote for each share of stock so held by him, and at said meeting to see that a permanent board of- directors to serve at the meetings of said corporation, until their successors are duly elected and qualified, are elected.
“It is further provided that in the event of the liquidation of said new corporation that all holders of Class A preferred stock shall participate pro rata in the distribution of the assets of said corporation, to- the extent of the par value of the stock so held by each, with accrued cumulative dividends, before Class B, or the common stock in said -corporation, shall be entitled to any participation whatever. If, after Class A has been distributed, there are any assets remaining to be liquidated or distributed, Class B preferred stock shall participate in the remainder thereof pro rata, according to par value of stock, to the exclusion of the holders of common stock, and if, after distribution of the assets of said corporation the same shall be distributed to the owners and holders of the common stock pro rata.
1 ‘ This agreement shall be executed in multiple copies and the signature to any one copy thereof shall be considered the signature to such agreement, and the signature to all -copies hereof when assembled and bound together shall constitute the signatures to the entire agree ment and the terms hereof shall thereupon become and be binding on and inure to the benefit of each of the parties signatory to each of the copies hereof, and upon the heirs, successors, administrators, and assigns of each’ thereof.
“Each of the parties signatory hereto hereby agree that the foregoing agreement may be considered as irrevocable option up to and including the 11th day of March, 1928', but it is also agreed that in the event that any of' the creditors have not joined in this contract by signing same, and accepting the terms thereof as applicable to himself, said trustee shall immediately proceed to- the liquidation of The Ozark Company, and shall carry into effect as nearly as possible the contract herein set out among those who have participated herein, and the trustee shall be a trustee for all who have joined, and shall proceed as such trustee to the liquidation, adjustment and organization as nearly as possible according to this agreement, and to the distribution of stock among those who have joined herein, within ninety days from date of signature, and for this purpose all signatories and signers hereto shall remain bound until the liquidation, adjustment and organization has been completed,- preserving and retaining, however, all the right of the mortgagee and lien holders, or their assigns, as they now exist or subsist.
“In witness whereof, the undersigned, as an individ- ■ ual, or as a corporation, as the case may be, has caused its name' to be signed hereto, or its president, attested by the secretary and corporate seal, or by such party as thereunto duly authorized.”
A large majority of the creditors accepted the agree- • ment and' surrendered their claims to the trustee, includ- ■ ing appellant and Mrs. Livingston. Thereafter the Forest Park Corporation was chartered in this State, and ■ stock was issued in-accordance with the agreement, Sloan being the president. During 1928 and 1929 it borrowed large sums of money for the operation and improvement of its properties, approximately $100,000 now due the appellee, Thompson Oil & G-as Company. Among other things, this suit challenges the right of the company to borrow this money for permanent improvements. It is also alleged that appellee Sloan agreed to purchase a sufficient amount of Class A preferred stock to finance the company, which he failed and refused to do, and that, had he done so, there would have been no occasion to borrow the money on short time notes. It is also alleged that 'Sloan is a one-half owner of the Thompson Oil & Gas Company, and that his failure to purchase Class A stock, and his action, or that of the company, in borrowing from the Thompson company, constituted a scheme on his part to wreck the new company and acquire all its property under judgment sale free from the lien of any other indebtedness. All these matters were put in issue by appellees, and in addition the Thompson Oil & G-as Company filed a cross-complaint against the Forest Park Corporation for the amount of its indebtedness. The latter, through its directors, confessed judgment. The court found against appellant, and dismissed its complaint for want of equity, and gave judgment on the cross-complaint.
Appellant first says that Sloan should be held liable on his agreement to subscribe for Class A preferred stock. We agree with the trial court that there was no such agreement, or at least that the preponderance of the evidence shows that there was not. It is not contended that such agreement is embodied in the “'Creditors’ Agreement,” hereinbefore set out, but that it was a contemporaneous oral agreement. Whether this character of evidence falls within the parol evidence rule, we do not find it necessary to decide, as we have already stated that according to the preponderance of the evidence no such agreement was made. It would serve no useful purpose to discuss the evidence in detail. However, when we consider how very careful Mr. Julius Livingston was in protecting his own interests and that of his mother in other ways, it is strange that he would have signed the written agreement and have left so important a matter out of it to rest wholly in parol. Nor do we see that appellant’s position would have been materially different, had Sloan bought Class A preferred stock instead of lending the money through the Thompson company. True, the company would not have this judgment against it, but it was appellant that precipitated the trouble. All Class A stock is ahead of and must be satisfied before a distribution could be made on Class B stock. Nor are we able to say that Sloan dealt unfairly or illegally with the corporation. Everything done was authorized by the board of directors and openly approved and ratified by the stockholders.
Other matters were suggested in oral argument, but we do not consider them of sufficient importance to discuss. We have carefully considered the facts as shown by the record and have reached the conclusion that the decree of the court is correct' and that it should be affirmed. | [
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Steele Hays, Justice.
This is an appeal from the denial of a motion for default judgment, which we dismiss for want of an appealable order.
Associates Financial Services Company, appellant, filed a writ of garnishment against County Memorial Hospital, a corporate garnishee. The hospital sent a letter to the circuit clerk, with a copy to Associates’ attorney, setting forth certain facts about the employment and wages of the defendant. The letter was signed by the personnel director of the hospital and was the hospital’s only response to the writ of garnishment.
Associates objected to the letter, primarily because it was not filed by an attorney. It argued that the letter was not a properly filed answer because a corporation cannot practice law except through licensed attorneys, citing All City Glass and Mirror v. McGrow Hill Information Systems Co., 295 Ark. 520, 750 S.W.2d 395 (1988). Associates asked that the letter be struck and that the circuit court grant a default judgment in the amount alleged in the writ of garnishment. The circuit judge held that the hospital had substantially complied and so denied the motion for default judgment. From the denial of that order the appellant brings this appeal.
Even though the parties did not raise the issue of the appealability of this order, it is our duty to determine whether or not we have jurisdiction. Kilgore v. Viner, 293 Ark. 187, 736 S.W.2d 1 (1987); Hyatt v. City of Bentonville, 275 Ark. 210, 628 S.W.2d 326 (1982). For an order of a trial court to be appealable, it must be an order which in effect determines the action and prevents a judgment from which an appeal might be taken or discontinues the action. ARAP Rule 2(a)(2). The denial of a motion for a default judgment is not a final order. DeClerk v. Tribble, 269 Ark. 572, 599 S.W.2d 152 (1980).
The appeal is dismissed. | [
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George Rose Smith, J.
This is a workmen’s compensation case in which Clint Bell’s widow and children seek benefits upon the theory that Bell’s death resulted from an accidental injury suffered in the course of his employment by the appellee. The Commission denied the claim upon the ground that the claimants had not met the burden of proof. The circuit court affirmed the Commission’s order.
Bell had worked for the appellee for many years prior to'April of 1945. In that month he became totally disabled as a result of heart trouble and filed a claim for compensation. The Commission rejected the claim, but on appeal we held that the injury was compensable because the dusty atmosphere in which Bell worked was a factor contributing to the onset of his disability. Batesville White Lime Co. v. Bell, 212 Ark. 23, 205 S. W. 2d 31. Pursuant to that decision Bell received compensation payments until his death in August of 1948. The appellants then filed the present claim for death benefits.
It will be observed that Bell’s death occurred a few months more than three years after the inception of his disability. The statute governing this case (which arose before the 1948 amendments to the Act) provides that if death does not occur within the first three years of the period for compensation payments “it shall be presumed that such death did not result from the injury and no death benefits shall attach.” Ark. Stats. 1947, § 81-1315 (b). The Commission ruled that the statutory presumption is rebuttable, and we agree with that ruling. Had the legislature intended for the presumption to be a conclusive one it could easily have said so, or it could have said that in no case would death benefits attach unless the employee died within three years after the injury. Most presumptions are rebuttable, and we find nothing in the Compensation Act to indicate that this one is not.
The Commission held, however, that the claimants’ evidence was not sufficiently strong to overcome the statutory presumption. As far as the cause of Bell’s death is concerned, the evidence is undisputed. When Clint Bell was about fourteen years old he had rheumatic fever. This disease usually creates a weakened heart condition. A person having a rheumatic heart may lead a normal existence for years, but in most cases the heart condition eventually flares up and ultimately proves to be fatal. Bell’s case history was typical except that he lived longer than most patients do after the onset of disability. It is not even suggested that his death was due to anything except heart trouble; in fact, the appellee and its insurer did not offer any evidence to contradict the appellants’ proof.
The transcript in the first case was introduced at the hearing below. What the Commission did was to reexamine that testimony and conclude that the claimants had not shown that Bell’s original injury was accidental. The Commission reasoned that the statutory presumption imposed upon these 'claimants a heavier burden of proof than that which ordinarily obtains. Implicit in the Commission’s written opinion is the thought that even though the proof.in Bell’s own case was strong enough to establish an accidental injury, the same evidence was insufficient to overcome the statutory presumption in a death case.
We think the Commission erred in retrying the issue of accidental injury. Whether the Commission’s finding upon an employee’s claim is res judicata as to his widow and children is a question of first impression in Arkansas. Several states have held that the rule of res judicata does not apply, but in most of them the peculiar wording of the compensation act permits the commission to modify its awards at any time. Our own provision for modification is not so broad. See § 81-1326.
We believe the better reasoned cases to be those holding that a decision rendered during the employee’s lifetime upon Ms assertion of compensable disability is binding when Ms dependents raise the same issue after his death. On this point an excellent opinion was handed down in Lanning v. Erie R. Co., 265 App. Div. 576, 40 N. Y. S. 2d 404, aff’d without opinion, 291 N. Y. 688, 52 N. E. 2d 587. There the employer contested the employee’s claim upon the ground that he was engaged in interstate commerce when the injury took place. The Board rejected that defense and allowed compensation. The injury led to the employee’s death, and in a proceeding brought by his widow the employer offered the same defense. In holding that this issue was concluded by the first adjudication the court said: “The railroad was not entitled to litigate a second time the issue of interstate commerce. It had its day in court on that question. While there is not an exact identity of parties, the decedent’s claim for disability compensation and his widow’s claim for death benefits both spring from the same accident and injury and they must stand or fall upon the determination of the issue of interstate commerce. This issue was proffered by the railroad and determined against it on the original claim by Lanning. . . •. Close analogy to the present situation is found in the statutory action for wrongful death. A judgment for or against a decedent in his lifetime is a bar to a later action for his wrongful death. Collins v. Hall, 117 Fla. 282, 157 So. 646, 99 A. L. R. 1086. The foundation in each instance is the same wrongful act and once the underlying issues as to such act have been determined against a party he has no right to a second hearing on those same identical questions.” To the same effect, except that the first decision hád been adverse to the employee, is Ek v. Dep’t of Labor and Industries, 181 Wash. 91, 41 P. 2d 1097.
In the case at bar the evidence upon the issues still left open by the rule of res judicata is not in conflict. It was determined in the first proceeding that Bell suffered an accidental injury which activated his dormant heart condition. That issue is not subject to reconsideration» All that remains to be decided is whether Bell’s rheu matic heart was the cause of his death, and, if so, whether death occurred sooner than it would have had his ailment not been activated by his employment. Frank Lyon Co. v. Scott, 215 Ark. 274, 220 S. W. 2d 128. The uncontra-dicted evidence requires an affirmative answer to both questions.
Reversed, with instructions to remand the cause to the Commission for the entry of an award in favor of the claimants.
G-rieein Smith, C. J., not participating. | [
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John A. Fogleman, Justice.
John O. May was serving as a duly elected and qualified alderman for the second ward of the City of North Little Rock when he was found guilty of the crime of abortion after a jury trial in the Circuit Court of Pulaski County. A sentence of four years’ imprisonment and $1,000 fine was entered on May 23, 1972. On June 26, 1972, the North Little Rock City Council elected Dell Edwards to the position theretofore held by May. May promptly instituted a suit against Edwards and the council in the Circuit Court of Pulaski County, seeking to oust Edwards. It is stipulated that the judgment entered in that case declared that May was ineligible to serve as alderman and that Dell Edwards was the properly installed alderman of the second ward. No appeal was taken from that judgment, so it has become final.
The judgment of conviction in the abortion case was reversed here on April 9, 1973, and the case was remanded for a new trial. See May v. State, 254 Ark. 194, 492 S.W. 2d 888. On April 12, 1973, May instituted this suit against Edwards, seeking reinstatement to the office, and alleging that the election of Edwards was void. Edwards answered, pleading that the judgment in the first case was res judicata, that since he was the incumbent duly elected to the office, no vacancy existed, that he was not subject to removal and that there was no authority for the reinstatement of May. The circuit court dismissed May’s complaint, holding that from and after June 26, 1972, Edwards was the duly elected and qualified holder of the position, that there was neither evidentiary nor legal basis which would justify his removal and no provision of law for May’s reinstatement. We agree with the circuit judge.
The disposition we make of this case renders the question whether appellant invoked the proper remedy or attempted to invoke the common law remedy of quo warranto moot. We shall consider this proceeding, for the purposes of this opinion, as if it were properly brought under Ark. Stat. Ann. §§ 34-2201, 2203 and 2209 (Repl. 1962).
Appellant contends Edwards has no right to the office and the trial court erred in failing to reinstate May. Appellant challenges Edwards’ title to the office, arguing there is a grave question as to Edwards’ official status, because there was no judicial declaration or affirmative finding by the city council that May was ineligible to serve before the council elected Edwards, and that the council’s action was based only upon a declaration by the City Attorney of North Little Rock that a vacancy existed. Appellant overlooks the fact that the judgment in the first case is res judicata of these issues. According to the stipulation of the parties, these very issues were determined by a final judgment of the circuit court, and he was precluded from raising them in this proceeding. Walthour v. Finley, 237 Ark. 106, 372 S.W. 2d 390; Morrow v. Raper, 222 Ark. 414, 259 S.W. 2d 499. That judgment, however, was conclusive only upon the issues presented and facts existing at the time and not upon any particular matter which was not necessarily within the issues presented or which could not have been litigated in the prior proceeding. Arkansas State Highway Commission v. Staples, 239 Ark. 290, 389 S.W. 2d 432; Swanson v. Johnson, 212 Ark. 340, 205 S.W. 2d 702; Coleman v. Mitchell, 172 Ark. 619, 290 S.W. 64. Insofar as the record discloses, there was no issue in that proceeding as to the tenure of Edwards or the possible reinstatement of May, and it does not appear these matters could have been litigated at that time. Inasmuch as appellee has not shown that these issues were or could have been raised in the earlier proceeding, we cannot say appellant is barred from raising them now. Crow Oil & Gas Co. v. Drain, 171 Ark. 817, 286 S.W. 971. In determining the issues presented here, however, May must rely upon the strength of his own title to the office and not upon the weakness of Edwards’. Langston v. Johnson, 255 Ark. 933, 504 S.W. 2d 349. In this instance, Edwards is the incumbent and will continue in office unless May is entitled to reinstatement.
There seems to be no precedent on the exact circumstances prevailing here. Our constitution provides that no person convicted of an infamous crime shall be capable of holding any office of trust or profit. Article 5, Sec. 9. We have said this language means the fact of conviction disqualifies one from holding public office. Ridgeway v. Catlett, 238 Ark. 323, 379 S.W. 2d 277. We need not consider whether, in May’s case, the conviction, even though reversed, would forever bar him from holding public office. Although no enabling legislation seems to have ever been passed, there is no occasion for our considering whether the constitutional provison is self-executing. We must accept the premise that, as between these litigants, these matters were concluded by the earlier litigation.
The North Little Rock Council, acting upon the premise that a vacancy existed, proceeded to elect an aider-man. Apparently the only applicable statute is Ark. Stat. Ann. § 19-1026 (Repl. 1968). That statute provides that whenever a vacancy shall occur, by any reason, in the office of alderman in a city of the first class, the council shall elect an alderman to serve for the unexpired term. We take this statute to govern in this case, which means that Edwards was elected for May’s unexpired term and that he will serve for that term, unless unforeseen events should earlier end his tenure. It is agreed there is no basis for his removal from office for cause. The only contention is, in effect, that his tenure ended when May’s conviction was reversed.
As conceded by appellee’s attorney in oral argument, either result we might reach would have harsh consequences, either to May, the duly elected alderman, who is again presumed to be innocent of the charges against him, or to the people of North Little Rock because of the uncertainty which would result if Edwards could serve only upon condition that May’s conviction was not reversed. Not only would there be an undesirable confusion if May should be reinstated, but it would be compounded if, while again serving, he should be found guilty upon retrial before the same term expired.
May takes the position that the reversal of his conviction made that judgment a nullity, and that the matter must be viewed as if there had never been a trial or any other action on the charges against him in that case, and that he is restored to all rights he had before the rendition of that judgment. There is certainly some support for that view in our cases. See Palmer v. Carden, 239 Ark. 336, 389 S.W. 2d 428; Hartford Fire Ins. Co. v. Enoch, 79 Ark. 475, 96 S.W. 393; Heard v. Ewan, 73 Ark. 513, 85 S.W. 240; Clark v. Arkansas Democrat Co., 242 Ark. 133, 413 S.W. 2d 629, supplemental opinion, 242 Ark. 497, 413 S.W. 2d 633; Morgan Engineering Co. v. Cache R. Drainage Dist., 122 Ark. 491, 184 S.W. 57. It must be remembered, however, that the rights said to be restored are ordinarily those existing between the parties only, unaffected by any overriding public interest.
The only Arkansas cases having any bearing whatever on the reinstatement of a removed public official are Winfrey v. State, 133 Ark. 357, 202 S.W. 23, and Gray v. Independence County, 166 Ark. 502, 266 S.W. 456. Both are readily distinguishable, and there is little comfort to either May or Edwards in them. In Winfrey, the re moval was itself a part of the final judgment reversed on appeal. We there declared that our reversal disposed of the order of removal, but not of a preliminary suspension which, if valid, would remain in effect, because it was mandatory, under the applicable statute, after indictment of an officer charging certain offenses. Although we held the suspension to be void because the charges were not of the type covered by the statute, we did not consider any question of reinstatement or removal of an incumbent selected to fill a vacancy, temporarily or otherwise. In Gray, we also treated the status of an officer under a suspension pursuant to a statute specifically requiring suspension of a county or township officer, indicted for any of certain specified crimes, until the charge was tried. We only held that the suspended Officer, after his acquittal, was not entitled to recover from the county the salary of the officé accruing during the period of his suspension. We used language in Gray, however,, which points toward the result we reach here. There we said:
In the case of Allen v. State [32 Ark. 241], the court said:
Offices are not regarded in this country as grants or contracts, the obligation of which cannot be impaired, but rather as trusts or agencies for the public. They are within the power of the Legislature, except so 'far as the Constitution may forbid interference with them. Coffin v. State ex rel. Norton, 7 Ind. 157.
In the case of Sumpter v. State [81 Ark. 60, 98 S.W. 719], the court quoted with approval from a decision of the Supreme Court of the United States, to the effect that the nature of a relation of a public officer to the public is inconsistent with either a property or contract right, and that the salary is not compensation for services secured by contract, but compensation for services actually rendered. The general rule is that, if the office is vacant, it becomes, as to the suspended person, for the time being, as though it did not exist, and, as to the public, the. person appointed to fill the last vacancy is the sole incumbent of the office.
Cases from other jurisdictions are of little more assistance. They are based upon constitutional provisions and statutes differing from ours. We can give no regard to those holding that an officer improperly removed is entitled to reinstatement. Such was the case in Winfrey. But as previously pointed out, the right of May to question the propriety of his removal has been foreclosed. Cases such as Hayes v. Hudson County Board of Chosen Freeholders, 116 N.J. Super. 21, 280 A. 2d 838 (1971), based upon specific statutes providing for or requiring reinstatement upon reversal of a conviction are certainly inapposite.
We find the case of State v. Chapman, 187 Wash. 327, 60 P. 2d 245 (1936), persuasive here, although there are distinctions which can be made. There was, at the time, a Washington statute declaring that conviction of a felony entailed forfeiture of office as a part of the penalty and disqualified the officer convicted from ever holding public office. Another statute provided that a vacancy in office should result upon the officeholder’s conviction of an infamous crime. There the officeholder was convicted of grand larceny and then ousted by a judgment in a separate proceeding, from which he did not appeal. Subsequently, his conviction was reversed on appeal. The officer then brought suit for reinstatement. The Washington court held that, insofar as this officer was concerned, the office became extinct when the judgment of ouster was rendered, that, under a statute strikingly similar to Sec. 19-1026, it was the duty of the board of county commissioners to fill the vacancy and that the successor chosen by them filled the office until the next general election or until his successor was duly elected and qualified. The court justified its statutory construction by these considerations:
(1) The public interest demands that public affairs be administered by officers upon whom rests no stigma of conviction for infamous crimes; and (2) the proper administration of public business requires a constancy and continuity of service and therefore demands that it shall not be subjected to the hazards of frequent and uncertain changes of officers during a specified term of office.
Assuming that the original judgment of conviction created a vacancy in the office, as we must by application of res judicata, we also find the case of Becker v. Green County, 176 Wis. 120, 184 N.W. 715 (1921), heavily relied upon by the circuit judge, to be highly persuasive. There the court found that reversal of a conviction of an infamous crime did not entitle the officer involved to recover the salary of the office for the period between his ouster and the end of his term prior to the reversal, because there was no applicable statute providing for restoration to office or for payment of the salary upon reversal of such a conviction. Other cases, distinguishable upon the facts, but nevertheless persuasive on the ultimate issue here include State v. Jurgensen, 135 Neb. 136, 280 N.W. 886 (1938); McKannay v. Horton, 151 Cal. 711, 91 P. 598 (1907); and Smith v. Noeppel, 120 N.Y.S. 2d 466 (1953). The prime consideration governing those decisions was the recognition that the public interest is paramount to that of the unfortunate incumbent. Throughout these cases, as well as Jolliff v. State, 215 So. 2d 234 (Miss. 1968), where an opposite result was reached, the courts view a removal of one convicted as imposed in the interest of the public and sound government, and the public office as the property of the people and not of the officeholder.
Sound policy expressed in the language of our own decisions and the logic of the cases above cited compel us to the conclusion that, harsh as the result may be insofar as May’s rights are concerned, the interest of the public lies in avoiding a vacancy and in having a degree of stability in the administration of the public business unlikely to exist when an incumbent serves an indefinite and speculative term and the office is subjected to frequent and uncertain changes during a specified term.
We must consider the public interest as paramount. In the absence of any statute providing for reinstatement or restoration to office under these circumstances and upon the basis of the facts and issues presented in this case, we hold that May is not entitled to reinstatement and that Edwards’ term extends for the remainder of May’s unexpired term.
The judgment is affirmed.
While in Jolliff the Mississippi court directed reinstatement of the officer whose conviction was reversed, that court based its decision upon the fact that only an interim successor had been named and that a successor had not been elected to fill the vacancy which had existed. The court took great pains to point out not only that its ruling was based entirely upon the unusual and peculiar facts and posture of the case but that an entirely different situation would have been presented if a successor had been regularly elected to the. office according to law. | [
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George Rose Smith, Justice.
The appellant, charged with possession of seven pounds of marihuana with intent to deliver, was convicted by a jury and sentenced to a six-year prison term and a $1,000 fine. The Court of Appeals transferred the case to us under Rule 29 (4) (b).
While the case was pending in that court, the appellant’s attorney filed a brief without a proper abstract of the testimony. When the Attorney General called attention to the deficiencies, the Court of Appeals correctly gave effect to Rule 9 (e) (2) by denying appellant’s motion to be allowed to file a supplemental abstract and brief, but permitting counsel to file a substituted abstract and brief. Counsel, however, disregarded the plain language of both the rule and the order by filing a mere supplemental abstract and brief. The rule does not contemplate that anything less than a complete, substituted abstract and brief may be filed in the circumstances, so we must treat the supplemental abstract and brief as the appellant’s only one in the case. When, as here, an appellant’s abstract is deficient, our practice is to rely on the record if it shows that the trial court’s decision should be affirmed on a particular point, but not to explore the record for prejudicial error if none is shown by the abstract.
On September 14, 1981, Kirk Hicks was a Van Burén county deputy sheriff and also a police officer employed by the city of Damascus. That night he stopped the appellant’s car because it had no taillights. The officer, having some reason to suspect that the appellant or his companion had unlawfully killed a deer, searched the trunk of the car and found not a deer but seven pounds of marihuana. After the trial counsel filed a motion for new trial on the ground that Hicks was not a certified law enforcement officer, so that the arrest and search were illegal. The denial of that motion is the first ground for reversal.
No reversible error is shown. Act 452 of 1975, as amended, provides for the certification of law enforcement officers and recites that official action taken by an uncertified officer is invalid. Ark. Stat. Ann. § 42-1007 (Supp. 1981) and § 42-1009 (Repl. 1977). Section 42-1007 also provides, however, that full-time officers serving on the effective date of the act may continue in their employment. Officer Hicks had been a police officer for some years before the passage of the 1975 act and was therefore exempted by its “grandfather clause.” It is not clear that he lost his status by moving from Stone county to Damascus and continuing in police work there. See § 42-1007. In any event, all the facts were available to counsel before the trial; so the motion for new trial was not supported by the necessary showing of diligence. Newberry v. State, 262 Ark. 334, 557 S.W.2d 864 (1977).
A second argument is that the trial judge should not have answered the j ury’s inquiry, during their deliberations, about parole eligibility for a person sentenced to one year in jail. Defense counsel, however, agreed in response to a question by the trial judge that information about “the parole situation” could be given to the jury. That distinguishes this case from our holding in Andrews v. State, 251 Ark. 279, 472 S.W.2d 86 (1971), for counsel cannot consent that the trial judge take some action and then seek a reversal on the basis of that action. Clack v. State, 213 Ark. 652, 212 S.W.2d 20 (1948).
A third argument is that the appellant did not voluntarily consent to the search of the trunk of his car. The substituted abstract of the testimony at the suppression hearing does not show that the consent was not voluntary. It is also argued that the trial judge was wrong in ruling that if the defendant took the witness stand at the suppression hearing he could not limit his testimony to the issue of whether or not his consent was given. Even so, there was no proffer of what the defendant’s testimony would have been; so we have no way of knowing whether he would have testified to facts rebutting his asserted consent to search. Barnes v. Young, 238 Ark. 484, 382 S.W.2d 580 (1964).
Affirmed.
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Hart, C. J.,
(after stating the facts). It is conceded that chancery has jurisdiction in the assignment of dower. Maxwell v. Autrey, 151 Ark. 85, 235 S. W. 384, and cases cited.
It is insisted, however, that the basis of this suit is to declare a trust in favor of the estate of R. B. Oliver, deceased, in the ’248 shares of stock in the Little Rock Revilo Hotel Company, and that chancery was without jurisdiction of said suit. We do not agree with counsel in this contention. The subject of the trust- sought to be declared in the 248 shares of stock in the hotel was personal property; and, being personal property, the trust might be created by parol and established by parol evidence. This court has held that the statute of frauds does not extend to trusts of personal property, and that such trusts may be created and proved by parol. Of course, the evidence to establish the trust must be clear and convincing. Scott v. Miller, 179 Ark. 7, 13 S. W. (2d) 819.
Tested by this well-established rule, we are of the opinion that the trust in favor of the estate of R. B. Oliver, deceased, in the 248 shares of stock in the Little Rock Revilo Hotel Company, which was issued to Joe H. Oliver, was established by clear and satisfactory evi deuce. It is true that J. H. Oliver testified that the stock was issued to him in consideration of between $15,000 and $20,000, which he loaned to his brother, R. B. Oliver. He introduced proof tending to show that between 1920 and.1921 he lived in Oklahoma and was worth at least $20,000. He also proved by one of his 'brothers that on a visit to Little Rock in the spring of 1924 R. B. Oliver told him that his brother, J. H. Oliver, had loaned him money and that he had paid him therefor 'by issuing to him stock in the Little Rock Revilo Hotel Company.
The testimony bearing on this phase of the case is very voluminous, and in some respects is somewhat ambiguous. But we are of the opinion that, when the whole transaction is considered in the light of the attendant circumstances, it is established by clear and convincing testimony that R. B. Oliver owned the Revilo Hotel. The record shows that, after he and his associates came to the State of Arkansas, he engaged in road construction work and at times made considerable amounts of money. Out of the profits of his construction work, he established and operated a hotel in the city of Little Rock known as the Revilo Hotel and also hotels in Conway and in Stuttgart. The undisputed evidence shows that from the time the Revilo Hotel on West Markham was taken charge of by R. B. Oliver in 1920, he had the exclusive management and operation of it until his death. He purchased the lots on which the hotel was situated and paid a consideration of $35,000 for them. He bought all the furniture and other furnishings which were placed in the hotel. He made all contracts for the repairs which were made on the hotel and paid the taxes on it up to the time of his death in 1928. His 'brother, Joe H. Oliver, had nothing whatever to do with the operation of the hotel, and did not claim any interest in it until after his brother’s death. After the death of his brother, he told several people that he had no interest in the hotel.
The record does show that J. H. Oliver loaned his brother, R. B. Oliver, in about 1921, $5,000; but it also shows that this amount was repaid him. The bookkeeper of R. B. Oliver testified that J. H. Oliver came from Oklahoma to Arkansas in 1922 and was an employee of the Oliver Construction Company at the sum of $250 per month. He had no interest whatever in the construction company and did not participate in its profits. She kept his account with the construction company; and at the time she quit as bookkeeper in 19'25, R. B. Oliver owed him something like $1,900. At no time did the books show that R. B. Oliver owed him any considerable amount of money. The account of the Revilo Hotel Company was kept in the name of R. B. Oliver, who managed and operated it as his own. J. H. Oliver had nothing to do with the operation and management of it, but was only present on the day the corporation was organized and the 248 shares of stock were issued in his name. R. B. Oliver took the shares of stock on that occasion and kept them in his safe with his private papers until his death in 1928. At no time does the record show that J. H. Oliver claimed any interest in the shares of stock in the Revilo Hotel Company. Nor does the record show that J. H. Oliver made any profits in road construction work after he came to the State of Arkansas in 1922. On the other hand, it tends to show that he was dependent upon his brother, R. B. Oliver, for employment, and he told the son-in-law and daughter of R. B. Oliver after his death that he did’ not know what he would do now.
One witness testified that he was with R. B. Oliver at a club house on a hunt sometime prior to his death, and that R. B. Oliver told him in the presence of two other witnesses who were named by him that the stock in the Revilo Hotel belonged to J. H. Oliver. The witnesses named, however, denied that R. B. Oliver made any such statement in their presence. They admitted that they were all together on the hunt. After considering the whole record, we have come to the conclusion that it is established by clear and convincing testimony that the 248 shares of stock belonged to R. B. Oliver, and were held in trust for him by J. H. Oliver. It is true that the record does not disclose why the shares of stock were issued in the name of J. H. Oliver, 'but it does show plainly and unequivocally that R. B. Oliver paid for the whole of the hotel property, including the furnishings in it, and exercised complete and exclusive control over it until his death. J. H. Oliver at no time made any claim to any interest in it and gives no satisfactory and definite account of any money advanced by him to R. B. Oliver except the $5,000 which was repaid to him.
It is next contended that the court had no jurisdiction to try the title to the steam shovels and Ford trucks in this proceeding. It is well settled in this State that, where a court of equity acquires jurisdiction of a matter in controversy, it will retain the case for the settlement of all rights between the parties growing out of and connected with the subject-matter, whether legal or equitable, so as to do complete justice. Having taken jurisdiction of the case for the equitable relief upon any phase of it, equity will retain the cause to administer the legal and equitable relief. McGaughey v. Brown, 46 Ark. 25 ; Home Life Ins. Co. v. Masterson, 180 Ark. 170, 21 S. W. (2d) 414 ; and Held v. Mansur, 181 Ark. 876, 28 S. W. (2d) 704.
But little need be said upon the facts upon this branch of the case. R. B. Oliver and D. B. Hill had formed a partnership as D. B. Hill & Company. The firm had sold to J. H. Oliver the steam 'shovels and Ford trucks in question, and had taken his title notes for the payment of the purchase money. There is a dispute between D. B. Hill, the surviving partner, and J. H. Oliver as to the payment of the purchase price, but the chancellor was justified in finding from the testimony and from the attendant circumstances that J. H. Oliver owed the- amount found to be due on the balance of the purchase price of the property, and that the plaintiff was entitled to her dower interest therein.
We find no reversible error in the record, and the decree will therefore be affirmed. | [
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Darrell Hickman, Justice.
This case was before us last year. We remanded it to the court of appeals to decide the constitutionality of the time limitation placed on filing a workers’ compensation disability claim when disability results from silicosis. Hamilton v. Jeffrey Stone Co., 293 Ark. 499, 739 S.W.2d 161 (1987) . The court of appeals held that the appellant’s proof was not sufficient to show that the limitations period violates the equal protection and due process clauses of the U. S. Constitution. Hamilton v. Jeffrey Stone Co., 25 Ark. App. 66, 752 S.W.2d 288 (1988).
Again we were asked to review the decision of the court of appeals, and we granted the petition. Upon further study, we have determined that review was improvidently granted.
Review denied. | [
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GeipeiN Smith, Chief Justice.
November 19, 1949, Carl Maddox shot and mortally wounded Collins Sheppard, 26 years of age. The circumstances were such that when tried the defendant was found guilty of murder in the second degree and sentenced to a- term of 18 years in the penitentiary.
Witnesses introduced by the State testified that C. L. O’Donnell and Collins Sheppard had been together until nine o’clock in-the evening, when they met Wren Sheppard and Julius Wynn at Cool Point. Collins and Wren Sheppard were brothers. Using Wynn’s car they drove to the café and night club owned and operated by Maddox on Highway 71 near the Louisiana line, reaching the place shortly after two a. m. In the meantime the}! had been joined by Kathryn Schoolfield.
Wren Sheppard, Wynn, and O’Donnell testified in substance that while at Cool Point they concluded to drive to Maddox’ place for coffee. There they parked about forty feet from the club. Other automobiles were to be seen, and the premises were lighted inside and out. Ten or twelve people, presumed to be customers, were in the building. When Collins Sheppard, walking in front of his companions, reached a small front porch at the main entrance it was found that the' door was locked. In response to Collins’ knock, Maddox came to the door and said the place was closed, then- returned to his friends within. Collins knocked a second time and according to at least two of the witnesses he had turned to walk away when Maddox reappeared and opened the door. Under testimony from which the jury could have believed that Collins thought that the club owner, in opening the door, had reconsidered the original rejection, he (Collins) turned and took a step toward Maddox. The latter fired one shot from a pistol, then withdrew to a position near the wall, where he brandished the weapon and warned incomers not to molest him.
At the time the shot was fired Collins was not less than four nor more than eight feet from his adversary. It was not contended that Collins was armed, and those who testified for the State agreed that the would-be patron did not use unusual force in knocking on the door, and that there were no threats. The wounded man was taken to a doctor, but was dead before attention could be given. He was shot “in the stomach about an inch from the navel,” said one of the witnesses.
The defense contended, and at least inferéntially suggested, that the four men were under the influence of intoxicants. It was claimed that the newcomers were politely told — first by Betty Carroll (an employee) and then by “Patsy” (one of Maddox’ daughters) — that the place was closed. Finally, when Sheppard and his friends persisted in entering, and when Collins kicked and threatened to kill all who were within, Maddox went to the door, partially opened by Patsy. Collins had taken advantage of Patsy’s courteous attitude and actions to shove his foot through the partly opened door in an effort to force an entrance. After Collins and his companions had kicked for some time, the door “flew open” and Collins was in the act of forcing his way in. Maddox insists that he had put a pistol in his pocket as a precautionary measure, not intending to use it. But, thinking he could “bluff” Collins, Maddox drew the weapon and they scuffled for possession of it. Then, said the defendant, “because I was afraid he would hurt me I jerked the gun down to get loose from him, and it [was accidentally] discharged.”
At another point in his testimony Maddox said: “When [Collins] kicked the door open and put one foot in, then is when I pnt the gun on him. He jumped at me and grabbed it, and I stooped over. He was stronger than I am, and I was afraid of him; so I jerked the gun down like this (indicating) to get loose from him, and that is when it fired. ’ ’
Appellant complains that he was entitled to an instruction dealing specifically with self-defense. In trying to clarify the issues Judge Bush said: “Mr. Maddox, there is one thing I would like for you to clear up for me: Is it your testimony that you didn’t intend to fire the shot?” A. “No, I didn’t.” Q. “ [You contend] that the gun went off accidentally ? ” A. “ Yes, sir, in the scuffle. ’ ’ Q. “You stand or fall on that statement, do you?” A. “Yes, sir.”
Certain suggested instructions dealing specifically with self-defense are thought by appellant to have been erroneously-refused, particularly No. 9, No. 10, and No. 11. But if it be conceded that the effect of testimony given by Maddox was that he attempted to use the gun as a “bluff” because he feared bodily injury, the Court’s Instruction “A” correctly told the jury that if it should find from the evidence “ . . . that the deceased, in a violent, riotous and turbulent manner undertook to force his way into the restaurant of the defendant, then the defendant would have a right to use a show of force to prevent such forcible entry by the deceased, and if the deceased did so undertake to force his way into the restaurant and the defendant presented a pistol in order to prevent his act of forcibly entering, and a scuffle ensued over the pistol and the pistol was accidentally fired and [Sheppard] was killed, you will acquit the defendant.” This instruction was responsive to the defendant’s own theory of the. tragedy.
Another objection was to the Court’s refusal to halt the Prosecuting Attorney on cross-examination of Maddox, and not to require an answer to the inquiry: “About a month before this happened didn’t you kill another man down there in your place of business [by using a baseball bat?”]. Responding to the defendant’s request for a mistrial, the Court ruled that the question could be an swered only to test the defendant’s credibility, and the jury was instructed not to consider the interrogation or reply for any other purpose. Maddox admitted that he had killed a man named Phillips in the manner mentioned and at the time referred to.
Other objections are made, but we are in accord that none of the assignments is prejudicial, hence the judgment must be affirmed.
State witnesses differed in their estimates of the- distance separating the two men. | [
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Lyle Brown, Justice.
This is an eminent domain cáse. It concerns a tract of land consisting of 101 acres in Scott County approximately one mile north of the city limits of Waldron. The south sixty-one acres of the property fronted on the west right-of-way of U.S. Highway 71 for one-quarter of a mile. That portion of the property was improved with the owners’ dwelling and outbuildings. The 2.96 acres was taken so the State could build the Waldron by-pass. The acquisition was a strip of land along the entire Highway 71 frontage ranging in depth from 15 feet to 371 feet. Two, 50 foot access points were given to the remainder, one to the north and another to the south. The original driveway was destroyed by the acquisition. With the exception of the two access points, controlled access was imposed across the remaining frontage. Just compensation was fixed by the jury at $9000. On appeal the Highway Department contends the verdict was excessive.
The landowners presented the evidence of an expert witness, Charles Wilburn. His qualifications were impressive and unquestioned. He testified just compensation to be $12,285. Appellant abstracted only the testimony of this witness. He fixed the market value of the whole tract before the taking at $65,000 and set the value of the remainder at $52,915. He used several asserted compar-ables to justify the land values. To the 2.96 acres taken, the witness attributed a value of $1185. He fixed a figure of $1300 as damages to the landscaped area within the taking. To sustain that figure the witness related that the road would have to be changed to come out at a different point because of the interchange; that part of a highly improved driveway was destroyed; and that some thirty well-developed trees, along with a number of young pine trees, were in the taking. The witness attributed the balance of the damages — some $10,000 — to placing the highway frontage under controlled access:
I think that’s a minimum it would sell for less, yes sir. My damages are because of the fence. Because of the limited access. He does have access on both ends of his property, but he don’t have a quarter of a mile of paved access and this road winds around through there in such a position that if he was going to develop it, they’d have to re-do that road. If a developer had it, he’d re-do that road. He wouldn’t use all that land that’s in between there and the highway. You’re talking about this access road up to the house; a developer couldn’t use that road if he wanted to develop it because he wouldn’t want to lose that acreage of land out in front there.
It was Wilburn’s opinion that the land before the taking was ideal for homesites, being dose to Waldron, having good terrain, and having unfettered highway frontage of a quarter of a mile. The witness also testified that, based on his experience, property located back of a controlled access fence sold for a lesser price per acre. He also related that a developer would have to build a new paved road behind the fence at substantial expense, and that expenditure would of course affect the price the developer would pay for the land.
When the freedom of access to a public highway is substantially affected by a taking so as to diminish the fair market value of the tract then compensable damages arise. Arkansas State Highway Comm’n. v. Billingsley, 247 Ark. 49, 444 S.W. 2d 259 (1969); Campbell v. Arkansas State Highway Comm’n., 183 Ark. 780, 38 S.W. 2d 755 (1931).
We are unable to say that the damages fixed by Wilburn are excessive. He was conceded to be an expert with excellent credentials. The jury verdict was well within the range of his testimony. See Arkansas State Highway Comm’n. v. Rhodes, 240 Ark. 565, 401 S.W. 2d 558 (1966).
Affirmed. | [
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Robert L. Brown, Justice.
This is an appeal from convictions for rape and attempted murder, which resulted in sentences of life imprisonment for rape and twenty-five years for attempted murder. The appellant, Kenneth Ryan Hollamon, appeals on the basis that he was denied equal protection of the laws due to a racially-motivated peremptory challenge by the prosecutor. He further urges that he is deaf and that the circuit court erred in failing to suppress his incriminating statement which was given without the assistance of an interpreter. We affirm the convictions and sentences.
The victim had been living in an apartment complex in Hot Springs for about two weeks when she reported to police that she had been raped at about 12:45 a.m. on May 10,1991. On several prior occasions before the attack, she had talked to the appellant in the apartment building. She later testified at trial that the appellant had beaten her, raped her vaginally and anally, and forced her to perform oral sex on him. In addition, he strangled her three times, causing her to pass out on each occasion. After she awoke the third time, she found herself in a closet with a plastic covering over her head. She ran next door to a friend’s house and called the police.
The appellant was found by the police on the grounds of the complex, and he was taken into custody. He was first interviewed by Detective Vicki Flint of the Hot Springs Police Department during the early morning hours after the attack. Detective Flint advised him of his Miranda rights, first reading them to him from the standard form and then allowing him to read them. He indicated that he understood his rights, and he initialed and signed the waiver and consent form. Hollamon gave two statements, and in the second statement he confessed to the rape.
The appellant filed a pre-trial motion to suppress the incriminating statement, asserting that Detective Flint had violated Ark. Code Ann. § 16-89-105(c) (Supp. 1991) by not providing an interpreter prior to taking the statement. A Denno hearing was then conducted, and an interpreter was present. At the hearing, Detective Flint testified that she was unaware of any hearing problem at the time she took the appellant’s statement, although she saw that he was wearing a hearing aid. Detective Gary Ashcraft also observed the hearing aid. The circuit court made preliminary findings that the appellant had demonstrated that he could hear and communicate and that his statement was “intelligently, knowingly, and voluntarily made.” Three hearings on deafness then ensued: on August 19, October 7, and October 28, 1991. Expert witnesses, including an audiologist, a speech pathologist, and two rehabilitation counselors, testified. The court denied the motion to suppress by letter opinion and found that the appellant was not deaf within the meaning of § 16-89-105(c) but was able to communicate in a normal conversational tone. The case was tried before an all-white jury in a three-day trial, and the two convictions resulted.
I. BATSON OBJECTION
Hollamon contends, as his first point for reversal, that he was denied equal protection under the state and federal constitutions because he is black, the victim is white, and the state, during jury selection, exercised a peremptory strike that excluded the sole black juror from the jury panel. As an adjunct to this argument, he urges that the circuit court failed to make the necessary sensitive inquiry under Batson v. Kentucky, 476 U.S. 79 (1986).
Prior to voir dire, a black woman named Stephanie Russell requested to be excused because she needed to be at work at the Majestic Hotel in Hot Springs for the next two days. She also stated that she had been subpoenaed to Garland County Circuit Court in Hot Springs the day before to testify on behalf of her boyfriend, who was also a client of the appellant’s defense counsel. Her boyfriend, however, had failed to appear for trial.
Ms. Russell was seated for voir dire as the only black on the panel. Two other black panel members had been excused for employment reasons. At a bench proceeding after the jury was excused, the prosecutor moved to strike Ms. Russell for cause on the grounds that she had a close association with a fugitive defendant who was to be tried the preceding day, a circumstance that might dispose her to be “prejudiced against law enforcement in general,” and also because she appeared “to be under the influence of some kind of drugs or alcohol today.” The court held that this was not sufficient for a challenge for cause.
The prosecutor then exercised peremptory challenges and excused Ms. Russell and one other juror. The appellant’s counsel requested that in light of the fact that both the accused and the dismissed juror were black the state be required to give its reason for striking her under Batson. The prosecution responded:
Your Honor, we’re striking Stephanie Russell for the reasons we just reiterated for the Court, in that we have information now that she is the girlfriend of Anthony Barron, who is ... a fugitive from justice from this Court. He was bench warranted yesterday.
He was represented by Mr. Becker [the appellant’s attorney]. At the time she was asked if she had any association with any lawyers in this case, it is my recollection that she did not come forward. She appears to be acting slow in her movements and responses today. Her speech was slower than normal when she came up to the Bench. She does not appear to be mentally at herself today. And for all those reasons — unless co-counsel has others — we have exercised our peremptory challenge against her.
The circuit court then asked the state’s co-counsel if there were any other reason. When she replied in the negative, the court turned to the defense and asked for a response. Defense counsel argued that the explanation was not sufficient reason to strike the only black on the jury. Additional statements were made by counsel for both sides. The court expressed its concern about the relationship between the appellant’s attorney and Ms. Russell and found it to be “sufficient basis for striking Ms. Russell.”
In Batson v. Kentucky, supra, the United States Supreme Court held that a defendant who makes a prima facie showing of purposeful racial discrimination in juror challenges shifts the burden to the state to prove that the exclusion of jurors is not based on race. The Court, however, refrained from formulating procedures to implement Batson, and the states have been forced to chart their own way in devising procedures for the time, place, and manner of the Batson process.
We have held that when the neutral explanation given by the state is sufficient, no sensitive inquiry is required. Colbert v. State, 304 Ark. 250, 801 S.W.2d 643 (1990). In Colbert, we declared:
We now believe that our previous interpretations of the Batson holding were misdirected only to the extent that we have said that Batson requires a “sensitive inquiry” by the trial court in every instance, notwithstanding the validity of the state’s explanation for its peremptory challenges.
We now hold that upon a showing by a defendant of circumstances which raise an inference that the prosecutor exercised one or more of his peremptory challenges to exclude venire persons from the jury on account of race, the burden then shifts to the state to establish that the peremptory strike(s) were for racially neutral reasons. The trial court shall then determine from all relevant circumstances the sufficiency of the racially neutral explanation. If the state’s explanation appears insufficient, the trial court must then conduct a sensitive inquiry into the basis for each of the challenges by the state.
The standard of review for reversal of the trial court’s evaluation of the sufficiency of the explanation must test whether the court’s findings are clearly against a preponderance of the evidence. In every instance, however, the court shall state, in response to the defendant’s objections, its rulings as to the sufficiency or insufficiency of the racially neutral explanation provided by the state.
304 Ark. at 254-255, 801 S.W.2d at 646.
Accordingly, the defendant must first establish a prima facie case of purposeful discrimination, which the appellant clearly did in this case when he pointed to a peremptory strike by the state dismissing the sole black person on the jury. After the circuit court inferred purposeful discrimination, the burden shifted to the prosecutor to give a racially neutral explanation for the peremptory challenge. In the bench proceeding, the circuit court questioned both the prosecutor and defense counsel on the challenge, and counsel for both sides addressed the issue. The circuit court stated that it was concerned about the relationship between the appellant’s attorney and Ms. Russell and found that the racially neutral explanation offered by the state was sufficient basis for its peremptory strike.
Prior to that decision, however, the court had refused to dismiss Ms. Russell for cause. The prosecutor’s explanation of a peremptory challenge, though, need not rise to the level that would justify the exercise of a challenge by the trial court for cause. Batson v. Kentucky, supra., Pacee v. State, 306 Ark. 563, 816 S.W.2d 856 (1991). Thus, the fact that the circuit court held the reasons insufficient for a challenge for cause does not mean that the same reasons could not show racial neutrality to support the exercise of a peremptory challenge.
We agree with the circuit court that the relationship of this juror to defense counsel is a valid concern that is not rooted in racial bias. Ms. Russell was friendly with a defendant who was to have been tried the previous day and defended by the appellant’s counsel. She had been subpoenaed to testify as part of the defense. One could reasonably conclude that her sympathies lay with the defense. Hence, we cannot say, under these circumstances, that the circuit court’s acceptance of the prosecutor’s justification was clearly contrary to the preponderance of the evidence. Accordingly, a further inquiry on the matter was not warranted. On this point, we note that the appellant did not specifically ask the court to conduct a further inquiry. Moreover, we are not certain that what transpired in the bench proceeding was not a sensitive inquiry. Both counsel were questioned by the court, statements were made, and the court made its finding. In this regard, the appellant offers no clue as to what additional facts might have come to the circuit court’s attention by virtue of a further inquiry.
Finally, we observe that during voir dire the appellant questioned the statistical representation of blacks in the jury pool. At one point, it was noted by appellant’s counsel that there were four blacks in a pool of sixty persons. A challenge to the pool on grounds that it did not represent a cross-section of the community was mounted and the circuit court denied the objection. Although we have, in accordance with Supreme Court Rule 11(f), reviewed the issue, we note that it was neither raised on appeal nor sufficiently developed at trial for our consideration.
II. SUPPRESSION OF STATEMENT BECAUSE OF DEAFNESS
The appellant argues, as his second point for reversal, that the circuit court erred in denying his motion to suppress his statement because no interpreter was made available. According to the appellant, the police officers violated the dictates of Ark. Code Ann. § 16-89-105(c) (Supp. 1991):
(c) In the event a person who is deaf is arrested and taken into custody for any alleged violation of a criminal law of this state, the arresting officer and his superiors shall procure a qualified interpreter in order to properly interrogate the deaf person and to interpret the person’s statement. No statement taken from the deaf person before an interpreter is present may be admissible in court.
The question we must resolve is whether the appellant was deaf at the time he gave his statement to Detective Flint. The term “deaf’ is not defined in the statute. In Black’s Law Dictionary, 6th ed. (1990), however, this definition following “Deaf person” appears, and the appellant urges us to adopt it:
Any person whose hearing is totally impaired or whose hearing is so seriously impaired as to prohibit the person from understanding oral communications when spoken in a normal conversational tone.
The testimony offered at three deafness hearings was varied. An audiologist testified that the appellant had severe hearing loss in his right ear and impaired hearing in his left ear, which was remedied to some extent by a hearing aid. A speech pathologist testified that the appellant’s language skills were akin to those of a six year old. Detective Flint testified that he was wearing a hearing aid at the time he gave his statements and that the appellant understood the questions asked during his interrogation. The victim also testified to her conversations with the appellant before the day of the rape and gave no indication that he could not hear.
There is also the fact that the appellant alludes to no example of how his asserted deafness encumbered him in any way during the interrogation process. Thus, we are confronted with a situation in which the appellant did not request an interpreter and gave no indication that one was necessary. Had the appellant requested such assistance or given any indication that he suffered from hearing loss and did not understand the proceedings, our assessment of his status might be entirely different. However, no such indication of deafness was made to the investigating officers.
Moreover, the circuit court held three hearings on the appellant’s auditory ability, as well as other pretrial hearings, and concluded that he was not deaf under the statute. We note in particular that the court had occasion to observe the appellant at these hearings and assess his abilities first-hand, which, no doubt, weighed heavily in its decision. The court then followed the definition in Black’s Law Dictionary for deafness and found that the appellant could communicate with other persons in a normal conversational tone.
Under these circumstances, we cannot say that the circuit court clearly erred in its finding. Where witness credibility is involved, wide discretion is given to the trial court which has the opportunity to observe those witnesses, and conflicts in that testimony are for that court to resolve. Lowe v. State, 309 Ark. 463, 830 S.W.2d 864 (1992). Similar discretion should be afforded the trial court in assessing a witness’s ability to hear.
There is one final point. The incriminating statement was not introduced into evidence during the state’s case. The circuit court did rule that it was admissible for purposes of impeachment, and the appellant moved for a mistrial. The appellant, however, never took the stand. It is reasonable to assume that the threat of impeachment kept Hollamon off the witness stand, which raises the specter of prejudice. Yet, it is the burden of the defendant to show specifically how he was prejudiced by presenting a proffer of what testimony was precluded or by some other demonstration of prejudice. This was not done, and we are left to speculate on what testimony Hollamon might have given had it not been for the threat of impeachment.
Furthermore, Hollamon’s counsel made a secondary argument for mistrial that Hollamon’s communication skills were so deficient that he could not have taken the stand in any event regardless of the impeachment potential. The circuit court rejected the argument, noting that it had observed the appellant’s reaction to testimony at times during the course of the trial, the implication being that the appellant could hear the proceedings in the courtroom. Again, we defer to the circuit court’s superior ability to assess the appellant’s ability to hear.
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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Steele Hays, Justice.
The appellant owns land that completely surrounds land owned by the appellee, purchased from a third party. Having no access to his land from any public road, appeliee filed a petition in county court, pursuant to Ark. Stat. Ann. § 76-110 (Repl. 1981), to establish a road across appellant’s land. Section 76-110 sets out the procedures for estabishing a road when an owner has no access to his land. The county court approved the petition and appointed three viewers who fixed a roadway and the amount of appellant’s compensation. Appellant appealed to the circuit court which affirmed the county court. On appeal, appellant contends § 76-110 is unconstitutional because it is only for private use, whereas the Arkansas Constitution grants the right of eminent domain only for public use. We uphold the constitutionality of the statute.
We have held several times that a road established under §76-110, although referred to in the statute as a private road, will be deemed a public road, because anyone who has occasion to use the road may do so. Bowden v. Oates, 248 Ark. 577,452 S.W.2d 831 (1970); McVay v. Stupenti, 227 Ark. 224, 297 S.W.2d 769 (1957); Pippin v. May, 78 Ark. 18, 93 S.W. 64 (1906); Roberts v. Williams, 15 Ark. 43 (1854).
Appellant argues that the right of eminent domain cannot be exercised unless it is in fact for use by the public, citing City of Little Rock v. Raines, 241 Ark. 1071, 411 S.W.2d 486 (1967). The appellant, however, misconstrues the term “public use in fact’’, as used in that case. In Raines, the City of Little Rock had issued revenue bonds and levied taxes pursuant to Amendment 49 and implementing legislation (Ark. Stat. Ann. §§ 19-2702 — 19-2719 [Repl. 1956]), and was attempting to condemn property for an industrial park in conjunction with a port authority. We said that cities may exercise eminent domain only as expressly granted by the constitution or statutes and such grants are to be strictly construed against the condemnor. We held that neither Amendment 49 nor implementing legislation delegated to the cities the right of eminent domain for an industrial park. The right must be given for a use that in fact directly benefits the public. The point the appellant makes is misguided. The distinction between public and private use is qualitative — not quantitative. In discussing Ark. Stat. Ann. § 76-110, the court in Pippin, supra, states:
The character of a road, whether public or private, is not determined by its length or the places to which it leads, nor by the number of persons using it. If it is free and common to all citizens, it is a public road though but few people travel upon it. (our italics).
Appellant also argues that our decision in Arkansas State Highway Commission v. Alcott, 260 Ark. 225, 539 S.W.2d 432 (1976) forces the conclusion that a road established by § 76-110 is for private use only. In that case the AHC sought to condemn land belonging to Alcott in order to restore access to property belonging to Corbin that had become landlocked as a result of highway construction. The AHC had proceeded under Ark. Stat. Ann. § 76-532 (Repl. 1981) which allows the Highway Commission to condemn for purposes of highway construction. We said:
The evidence adduced by [The AHC] clearly shows that this taking was not for a public use. To the contrary, it was for the purpose of providing a private driveway and this the State cannot do.
Whether or not a use is public is a question for judicial determination. City of Little Rock v. Raines, supra. In Alcott, even the Highway Department conceded the condemnation was solely the Corbin’s driveway. Other testimony from the AHC acknowledged it had taken that approach because it was cheaper than paying damages for Corbin’s property. In contrast, there was no evidence in the present case to show that the road to appellee’s property would not be for public use, and there has been a long established presumption under this statute that the road will be for public use. There is no similar precedent under § 76-532 when condemning for highway purposes. Additionally, it is clear that the AHC had other alternatives open to it, but simply chose what it saw as the less costly route. An individual who is landlocked and proceeds under § 76-110 has no other alternatives available to him. If he were not granted access to his land under such a statute, he would have no remedy.
Appellant notes that Bowen v. Hewitt, 227 Ark. 568,299 S.W.2d 827 (1957) holds that a road established under § 76-110 can be acquired through adverse possession, and since Ark. Stat. Ann. § 37-109 provides that no public road can be.acquired through adverse possession, it follows that a road under § 76-110 cannot be a public road. We disagree with that reading of Bowen, where we said only that a road established under § 76-110 can be abandoned if not used for seven years by the party who petitioned for the road. There is a significant difference between abandonment and adverse possession and to read abandoned to include or mean adverse possession would be a distortion of the law announced in that case.
We think the result reached here is not inconsistent with dictum in Raines, where we said the right of property is before and higher than constitutional sanction. Granted, in one sense we are employing the process of condemnation against one property owner to serve the needs of another property owner for what is, in part, a private use — an access road. But that result is, we believe, justified by a balancing of equities, in that the imposition on the first owner is relatively slight in comparison to the benefit to the second, and, more importantly, it serves legitimate public interests: the creation of a road available to the public and the transformation of land which would otherwise remain useless into potentially valuable and productive property.
The judgment is affirmed.
Hickman, J., dissents. | [
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Smith, J.
Appellee bank brought this suit to enforce the collection of a note to its order for $1,100 given in part payment of an automobile purchased from' it by appellant.
An answer was filed in which it was alleged that the automobile was sold under a warranty that it was a new car, and had not been driven more than 250 miles, whereas it was an old car and had been driven so long that its machinery was hadly worn, and that on this account the car was not worth more than $300. It was alleged that the consideration for the car had failed in part, and, as $550 had been paid on the purchase price of the car, judgment was prayed for the recovery of the $250 paid in excess of its value.
The writing sued on was not merely a note; it was a contract of sale which recited the conditions of the sale, but contained no warranty of any kind. Appellant testified that the cashier of the bank, who negotiated the sale of the car, represented to him that the car was practically new, and that he regarded this representation as a warranty, and relied upon it as such, but he later discovered that the car was old, and had been in a wreck, which had necessitated very extensive repairs, and frequent subsequent repairs were required to keep the car in running order, on account of its worn condition.
The testimony of appellant, and that of the mechanic who had frequently repaired the car, was objected to upon the ground that the contract of sale was complete, and contained no warranty, and that it was not permissible to engraft a warranty upon a contract of sale which contained none.
After the conclusion of all the testimony, the record recites that: “Thereupon the court stated to the attorneys that defendant’s answer would be treated and considered as amended so as to allege false representations to defendant by plaintiff as to the condition of the automobile in controversy; also to raise the issue of the failure of consideration for the execution of the note sued on.” .
After making this order, the court directed the jury to return a verdict for the balance due on the note or contract of sale, and from the judgment rendered upon this verdict is this appeal.
It was said in the case of Lower v. Hickman, 80 Ark. 506, 97 S. W. 681, that: “A warranty is so clearly a part of a sale that where the sale is evidenced by a written instrument, it is incompetent to engraft upon it a warranty proved by parol. The character of the written instrument is not important, so long as it purports to be a complete transaction of itself, and not a mere incomplete memorandum or receipt for money or part of a transaction where there are other parts of it other than warranties. ’ ’
' That case has since been frequently followed and approved, and we have no intention of impairing its authority. But, while a parol contract may not be en-grafted upon a complete written contract of sale containing no warranty, it is permissible to show that the exécution of such a contract was procured by false representations, upon which the purchaser had the right to rely, and did rely, in making the contract; and if these false representations induced the purchaser to promise to pay a sum in excess of the value of the article sold, he may recoup the difference in value arising out of the false representations.
The instant case is sufficiently similar to that of Hayes v. Gammon, 168 Ark. 1116, 272 S. W. 644, to be controlled by it. In that case the contract of sale was evidenced by a writing which not only did not contain a warranty, but, on the contrary, contained the express recital that “the property is transferred in its present condition, and no warranties,” yet, we upheld the action of the trial court in that case in admitting testimony showing that the execution of the contract had been procured through false representation as to the age of the car there sold, which had induced its' execution, and affirmed the judgment which had assessed damages on that account.
Appellee insists that the action of the trial court should be affirmed upon the authority of the case of Federal Truck & Motors Co. v. Tompkins, 149 Ark. 664, 231 S.W. 553 ; The opinion in that case recites that the pur chaser defended upon the ground that he had been deceived and induced to buy a second-hand truck by false representations in regard to. its ag’e and condition; but the opinion also recites that the case was not tried upon that issue in the court below. The defendant there sought to defeat a recovery against him by relying upon a contract having the incidents of-a sale with a warranty, but to sustain that defense he was required to engraft a warranty by parol upon a complete written contract which contained no warranty, and upon the authority of Lower v. Hickman, supra, it was held that this could not be done.
The trial court was correct therefore in holding that a recovery in the instant case could not be defeated on the ground that there had been a breach of warranty. Appellant could not prove a warranty, because his. written contract of sale did not contain a warranty, and he could not engraft one upon it by parol testimony; but,- when the trial court ordered that the “answer would be treated and considered as amended so as to allege false representations,” a different case was presented. The rule of evidence which excludes parol testimony engrafting a warranty upon a valid -and complete written contract of sale containing none does not operate to also exclude ■testimony tending to show that the execution of such a contract was induced by false representations.
Appellee says that no additional testimony, was offered after this ruling of the court was made, and that there was therefore no error in directing a verdict in its favor. But, while appellant was unsuccessful in proving a contract containing a warranty, this was true pnly because the rules of evidence excluded testimony offered for that purpose, and while the testimony could not, for this reason, raise the issue of a breach of warranty, we think it was sufficient to- raise the issue for the jury as to whether the execution of the contract had been procured by false representations. If so, appellant had the right to recoup such damages as arose out of the false representations, and this issue should have been submitted to the jury after it had been ordered that the pleadings be treated as amended to raise the issue.
The record before us presents no question as to whether the court was required, under the circumstances stated, to permit this amendment of the pleadings at the time the amendment was made; nor does the record present the question as to the conditions which might have been imposed as to costs or a continuance, had that been asked.
The amendment of the pleadings was made, and there was testimony tending to show that the execution of the contract was procured by false representations as to the age and condition of the car, and this issue should have been submitted to the jury, and for the error in not doing so the judgment must be reversed, and it is so ordered, and the cause will be remanded for a new trial. | [
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David Newbern, Justice.
The appellant, John W. Kiefer, was convicted of rape and incest. He raises three points of appeal. First, he contends his statement admitting having sexual intercourse with his 14-year-old daughter should have been suppressed because the officer who arrested him, Hoxie Police Chief Paul Hendrix, violated Ark. R. Crim. P. 2.3 by failing to inform him he did not have to come to the chiefs office after Hendrix requested that he do so. Also under this point, he argues the form he signed, acknowledging his rights had been explained, was inadequate and that his statement should have been suppressed because he asked to consult with a lawyer before making it and was not afforded that right. Second, he argues it was error for the prosecutor to have called Kiefer’s wife to the stand, knowing that she would refuse to testify. Third, he argues insufficiency of the evidence of forcible compulsion, an element of the rape conviction.
1. Suppression
Kiefer moved to suppress evidence that he had confessed. At a suppression hearing, Chief Hendrix testified he was called by a social service worker to meet with her at Hoxie High School concerning a charge of rape and incest. That meeting resulted in his calling Kiefer to come to his office. Hendrix testified he had no warrant for Kiefer’s arrest, but he felt he had probable cause to arrest Kiefer. He “had belief’ that a felony had been committed.
Kiefer, accompanied by his wife, drove himself to Hendrix’s office. Hendrix testified he informed Kiefer of his rights and then took Kiefer’s statement in which Kiefer admitted having intercourse with the daughter but said he had not compelled her to do it. Hendrix testified that it was not until after Kiefer made his statement that Kiefer mentioned getting a lawyer. We need not address this matter further, as no authority is cited with respect to it and the judge was entitled to believe Hendrix’s testimony.
Hendrix conceded he did not inform Kiefer he did not have to come to the office. Rule 2.3 states, in part, that “[i]f a law enforcement officer . . . requests any person to come to . . .a police station ... he shall take such steps as are reasonable to make clear that there is no legal obligation to comply with such a request.” Kiefer cites only Foster v. State, 285 Ark. 363, 687 S.W.2d 829 (1985), in support of his contention that the conviction must be reversed because of noncompliance with the rule.
In the Foster case we mentioned the failure to comply with the rule, but the burden of the decision lay upon the misuse by police officials of the prosecutor’s authority to summon a person to his office for questioning. Ms. Foster had been awakened at 2:30 a.m. and taken to the prosecutor’s office by four police officers. In addition to noting the failure to tell her she did not have to accompany the officers, we pointed out that a prosecutor may not thus misuse the power given to him by Ark. Code Ann. § 16-43-212 (1987), and that it is wrong for the police to use the prosecutor’s authority for a police investigation.
The question before us thus becomes what if in the Foster case, as in this one, the only violation had been failure to comply with the rule. In Burks v. State, 293 Ark. 374, 738 S.W.2d 399 (1987), we had a similar situation. There we concluded that failure to comply with the rule required us to consider the interrogation of one who voluntarily complied with a request to appear at a police office to have been a “custodial interrogation,” and suppression was required unless there was probable cause to seize the person making the statement sought to be suppressed. We then noted that probable cause exists if the officer has reasonably trustworthy information which would lead a person of reasonable caution to believe that a felony was committed by the person to be arrested, citing Coble v. State, 274 Ark. 134, 624 S.W.2d 421 (1981). We concluded there was probable cause to arrest Burks at the time the evidence against him was obtained from him, and thus his conviction was affirmed.
Kiefer’s daughter, the alleged victim, testified she had told a social worker, Sally Golden, about her father’s conduct. Sally Golden is the person with whom Chief Hendrix met at Hoxie High School where he obtained the information which formed the basis of his request that Kiefer come to his office. The court was correct in refusing to suppress Hendrix’s testimony about Kiefer’s statement to him, as there was probable cause to arrest Kiefer at the time the statement was made, and Kiefer had been informed of his rights when he volunteered his statement.
We decline to address the argument that the rights form was “confusing,” as no authority is cited in support of it, and it is not convincing. Bonds v. State, 296 Ark. 1, 751 S.W.2d 339 (1988); Garrett v. State, 294 Ark. 556, 744 S.W.2d 731 (1988); Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).
2. Calling Mrs. Kiefer
The prosecutor called Mrs. Kiefer, the appellant’s wife, to the stand. As she approached, she informed the court she did not wish to testify. She was sworn in and then again informed the court she did not wish to testify. A hearing was held out of the presence of the jury. The judge asked Mrs. Kiefer if her wish not to testify was based upon her desire not to incriminate herself. She said she did not understand. The judge then appointed an attorney to discuss Mrs. Kiefer’s rights with her. The attorney informed the court that Mrs. Kiefer wished to assert her Fifth Amendment right not to testify. She was not recalled to the witness stand.
Kiefer argues his motion for a mistrial should have been granted because the prosecutor called Mrs. Kiefer to the stand, knowing of her desire not to testify. In Foster v. State, supra, we wrote that it was error for the court to permit the prosecution to call a witness to the stand where both the court and the prosecutor knew that the witness would be advised to assert her Fifth Amendment privilege not to testify. There, the attorney for the witness had asserted her privilege at an earlier bail bond hearing and had informed the court and the prosecutor the witness would assert the privilege if called to testify at trial.
In this case, there is no evidence that the court had any knowledge Mrs. Kiefer would assert her privilege. Although the prosecutor apparently knew Mrs. Kiefer had previously asserted she did not want to testify, nothing in the record shows she previously asserted any recognized privilege. In the Foster opinion, we quoted with approval the court of appeals decision in Sims v. State, 4 Ark. App. 303, 631 S.W.2d 14 (1982), where it was said that the evil in this situation lies not in the mere calling of a witness but in the asking of a series of questions, each of which she refuses to answer on privilege against self-incrimination grounds, thus creating the equivalent of testimony in the minds of the jurors. Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1704 (1965). The court did not permit that here, and there was no error in refusing to grant a mistrial.
3. Sufficiency of evidence
An element of the crime of rape, as charged in this case, is “forcible compulsion.” Ark. Code Ann. § 5-14-103 (1987). Kiefer’s daughter testified that Kiefer made her have sex with him, that she had asked him not to do it, and that he had been doing it ever since she was little. She was 15 at the time of the trial. We find the evidence of forcible compulsion was sufficient. In Griswold v. State, 290 Ark. 79, 716 S.W.2d 767 (1986), we held there was forcible compulsion in very similar circumstances. We noted, “[t]he age of the victim and the relationship of the victim to the assailant are key factors in weighing the sufficiency of evidence of force to prove rape.” As in the Griswold case, we conclude that the testimony of the victim was sufficient to show that the sexual intercourse occurred without her consent.
Affirmed.
Hickman, J., concurs.
Purtle, J., dissents. | [
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Minor W. Millwee, Justice.
Appellant, The Walters-Sonthland Institute, is a school which has been operated at Lexa, Arkansas, since 1936 by the African Methodist Episcopal Zion Church. ' Appellee, W. W. Matthews, served as bishop of the Arkansas conference of the church and president of the school from 1936 until May, 1948. The exact nature of the organization of the school prior to 1946 is not clear from the record although it had a board of trustees and operated under auspices of the church.
In 1936 the institute purchased its 160-acre school site from the Masonic Lodge and executed a mortgage on said property to secure the payment of the purchase price. In 1940 the president and secretary of the school, acting under authority of the board of trustees, entered into an agreement with the lodge which provided for an extension of the time of payment of a balance of $5,500 remaining due on the purchase price at the rate of $500 annually beginning December 31, 1941. The agreement further provided for the execution of a $500 interest note payable October 1, 1941, which covered all interest due and payable for the 11-year extension period.
In March, 1946, appellee and five other members of the board of trustees consulted Gr. D. Walker, an attorney at Helena, Arkansas, with reference to the execution of a mortgage to Bishop Matthews to secure certain ad- • vanees he had made to the school including payment of a $4,200 balance on the Masonic Lodge indebtedness. Upon investigation Mr. Walker ascertained that appellant had no corporate entity. Acting upon his advice, a petition was filed by appellee and 14 others in circuit court and an order entered incorporating appellant as a benevolent association pursuant to the provisions of Ark. Stats., §§ 64-1301 — 64-1312.
The articles of incorporation provide that the bishop of the conference shall be an ex-officio member and president of a board of trustees consisting of not less than nine nor more than fifteen members. The articles further provide that the board of trustees shall operate the institute in accordance with the doctrine and discipline of the African Methodist Episcopal Zion Church and its Department of Christian Education. The church discipline provides that no debts shall be contracted by the board of trustees without concurrence of the Board of Christian Education which is authorized to exercise general supervision and control over all educational institutions of the church.
After a correction deed was obtained from the Masonic Lodge, a resolution was adopted at a meeting of the board of trustees on April 2, 1946, authorizing the execution of a deed of trust of the school property by appellant in favor of G. D. Walker, as trustee for the use and benefit of Bishop Matthews, to secure an indebtedness of $7,847.60 evidenced by four notes payable one, two, three and four years from date bearing interest at the rate of 6 per cent, per annum. The resolution recites its adoption by a vote of six to 0 with Bishop Matthews excusing himself from presiding and participating in the proceedings. The notes and deed of trust were executed by the vice-president and secretary on April 2, 1946, and the deed of trust was filed for record on the same date.
On April 28, 1948, the vice-president and secretary of appellant executed an unsecured note to Bishop Matthews for $6,001.40, payable in 60 days. The minutes of the meeting of the board of trustees held April 27, 1948, authorizing the execution of this note reflect that the meeting was presided over by Bishop Matthews and at-' tended by three other members of the board including Etoriah Dryver who served as registrar and bookkeeper of appellant for a seven-year period beginning in 1941. Nine members of the board were noted as absent and two as “present by proxy.” The minutes further recite that this note was given for further advances by appellee which were used in the construction of a new building for the school at a total cost of $49,029.11.
At a meeting of the General Conference of the church at Louisville, Kentucky, in May, 1948, appellee was deposed as bishop on charges of forgery and immoral conduct. The charge of forgery grew out of an alleged alteration by the bishop of a passport by changing his date of birth shown thereon for the purpose of deceiving the conference and continuing himself in office as an active bishop. The second charge was based on his alleged association “openly” with Etoriah Dryver to whom he was secretly married in January, 1947. Although the conference determined that Bishop Matthews should not be deemed a retired bishop in the “usual, official use” of the term, it voted to allow him the usual retirement pay of one-half his former salary as bishop “as an act of mercy and out of consideration for his many years of service to the church.”
On April 4,1949, appellee and Gr. D. Walker, Trustee, brought this suit against appellant to foreclose the deed of trust of April 2, 1946, alleging failure of payment of three of the four notes secured by the deed of trust. By amendment to the complaint appellee also sought judgment for $6,001.40 and interest on the unsecured note executed on April 28, 1948.
While appellant in its answer and cross-complaint did not specifically deny the indebtedness to appellee, it alleged that the latter had sole active charge of the receipt and disbursement of all funds of the school from 1936 to 1948 and occupied the status of a trustee toward said institution; that during said years he controlled funds belonging to the school in excess of $120,000 without adequate records and a proper accounting thereof; that he caused the deed of trust and notes sued upon to be authorized at meetings of the board of trustees held without a quorum present and without approval of the Department of Christian Education as requried by the discipline of the church; and that there were certain discrepancies in appellee’s financial reports to the general conference and a failure to account for funds which the church records disclosed were delivered to him for the use and benefit of appellant. Appellant prayed for an accounting and that it be given credit upon any indebtedness found due appellee for all funds received by him belonging to appellant and not properly accounted for. By amendment to the cross-complaint it was also alleged that on account of the fiduciary relationship existing between the parties and the complicated accounting in volved, a master should be appointed to take proof and state an account between the parties.
At the conclusion of the trial, the chancellor made separate findings of fact in which he stated: ‘ ‘ The testimony is very confusing about the manner in which those books were kept and about whether Bishop Matthews owed the church and fraudulently kept back the church school’s money that he had. There is nothing here in the record for the Court to make a finding as to any indebtedness due the church for anything whatever. ’ ’ A decree was entered awarding judgment for $7,108.92 in favor of appellee for the balance due on the three notes secured by the deed of trust and also for the amount of $6,504.56 on the unsecured note. The decree further ordered foreclosure of said deed of trust and sale of the school property unless the amount first found due was paid within 90 days. Appellant’s prayer for an accounting and the appointment of a master to hear and state an account was denied and the cross-complaint dismissed for want of equity.
Appellant offered evidence to show that during the 12-year period appellee served as bishop and president of the board of trustees, he exercised almost exclusive control over the affairs of the institute. While his conference covered considerable territory, he maintained his residence at the school and devoted a large portion of his time to administering its affairs. He received and made deposits of all moneys sent to the school and signed all checks disbursing school funds. Two of the trustees in attendance at board meetings authorizing execution of the notes and deed of trust were ministers residing in Little Rock and Pine Bluff. Their testimony is to the effect that appellee dominated board meetings and that they followed his recommendations in all financial matters without question and without being advised as to the correctness of the amounts which he claimed to have advanced from time to time in operation of the school. While the financial reports given at board meetings were submitted by the registrar, other board members stated that they relied wholly upon appellee’s recommendations in passing thereon and knew nothing about the actual financial status of tlie institution. A majority of the board members, wlio are nominated by tlie bisliop, were inactive insofar as this record discloses. The board meeting authorizing execution of the note for $6,001.40 was held about 10 days prior to the filing of charges against appellee at the General Conference.
There was- evidence that when appellee assumed the mortgage indebtedness to the Masonic Lodge, he represented to other trustees that interest payments to the lodge were too high and that he was willing to refinance the loan at a lower interest rate. Under the extension agreement with the lodge the interest rate was in fact much lower than the 6 per cent, rate charged by appellee in talcing over the loan. After addition of other advances to the indebtedness due the Masonic Lodge the increased principal was made payable in four annual installments of more than $1,900 each under the refinancing agreement between appellant and appellee, while the extension agreement with the lodge provided for principal payments of only $500 annually over a period of 11 years.
After appellee was succeeded in office by Bishop R. L. Jones, appellant employed a certified public accountant to make an audit of the institute’s books and records. This audit did not purport to be an exact reflection of the transactions of the school because of the incompleteness of the records presented and the short time (five days) spent in making it. However, the audit reflects certain discrepancies between the receipts and disbursements as shown on the records of the school and as reported to the general conference and the Department of Christian Education of the church, particularly during the four-year period prior to 1948. As shown by the audit, the books of the school show receipts of $13,-250.80 and disbursements of $7,237.21 for the year beginning June 1,1944, and ending May 31,1945, while reports forwarded to the Board of Christian Education of the church for that year show receipts of $19,959.42 and disbursements of $12,176.93. Similar discrepancies appear for subsequent years and will not be detailed here. Ap-pellee was unable to explain these discrepancies stating that he at no time was bookkeeper or treasurer of appel lant and was not responsible for tl'ie reports drawn np by the registrar and approved by the board of trustees.
Tbe record before ns includes several hundred pages of exhibits of accounts, reports and cancelled checks involving hundreds of transactions and more than $100,000. In view of this complicated record and the fiduciary relation existing between appellee and appellant, the question here is whether the court erred in refusing to appoint a master to hear and state an account. A chancellor is clothed with considerable discretion in determining whether an accounting matter should be referred to a master. Norden v. McCallister, 207 Ark. 1101, 184 S. W. 2d 459. In the early case of Bryan v. Morgan, 35 Ark. 113, the court said: “It was not erroneous in the Chancellor to refuse a reference to the Master to take and state the account, but it was not good practice. The Chancellor may, himself, take an account, announce the result, and decree accordingly. But this practice should be confined to simple and obvious cases, in order to save expense to litigants. In complicated transactions, justice cannot be well done without a reference.”
The issue here is similar to that involved in the case of Excelsior White Lime Co. v. Rieff, 107 Ark. 554, 155 S. W. 921. There the general manager and secretary-treasurer of a corporation sued the corporation for back salary alleging insolvency of the defendant. The corporation filed a cross-bill asserting that the plaintiff had full control of the corporation, that he had not accounted for certain assets, and prayed for an accounting. There, as here, the court was confronted with a voluminous and complicated record and it was impossible to determine whether the plaintiff-manager of the corporation had properly accounted for funds he had received in managing and directing the affairs of the corporation. After citing the rule stated in Bryan v. Morgan, supra, the court said: “After spending much time on this record, the court has concluded that an injustice might be done one or the other of these litigants in attempting to state an account and strike a balance between them under the conditions of this record and it has accordingly determined and therefore orders that the cause be reversed and remanded with directions to the chancellor to refer this record to a master to state this account; and that in stating this account, he charge the appellee with any excess of salary paid him and also with any funds not affirmatively shown to have been properly accounted for.”
Appellee points out that the plaintiff in the ftieff case was not only general manager and treasurer of the corporation, but actually kept the books and records and ran the affairs of the company while in the instant case the affairs of appellant were controlled by the board of trustees and the books were kept by the registrar-treasurer. It is true that appellee, as president of the board of trustees, was not required to perform many of the duties which the evidence discloses that he actually did perform in connection with the administration of the affairs of appellant. He collected, deposited and disbursed the school funds and apparently dominated and controlled the actions of the board of trustees. The fiduciary relation existing between the parties imposed upon appellee the duty to render a proper accounting of the funds handled by him particularly in matters in which he was personally interested. The existence of such fiduciary relation is one of the well recognized grounds for equity jurisdiction of a suit for an accounting. 4 Pom-eroy’s Equity Jurisprudence (5th Ed.), §. 1421.
Appellee also argues that appellant failed to discharge the burden of proving there was something due it as a setoff against the indebtedness before it was entitled to an accounting. The applicable rule is stated in 1 C. J. S., Accounting, § 27, as follows: “Where there is no balance due plaintiff from defendant, an accounting will not as a general rule, be ordered, since it would avail plaintiff nothing. On the other hand it has been held that the showing’ of a balance due plaintiff is not essential, since the party to whom the balance is due is the very matter to be determined; and an accounting has been held proper when it is necessary to show how money advanced by plaintiff in a business venture has been disposed of. ’ ’ It has also been held that an accounting may be had against a fiduciary to determine whether there is, in fact, anything due the plaintiff. French v. C. F. & T. Co., 124 Or. 686, 265 Pac. 443.
In view of the complicated record here involved, the fiduciaiy relation existing and the circumstances surrounding the transactions between appellee and appellant, we hold that it was error to refuse the appointment of a master. The decree is, therefore, reversed and the cause remanded with directions that this record be referred to a master to hear further testimony and state an account between the parties. | [
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Lyle Brown, Justice.
A personal injury action was instituted by appellant, Vandevier, against appellee, Chapman. At the time suit was filed, appellee was living in Arizona and service was had upon the Secretary of State. The trial court sustained a demurrer to appellant’s complaint and the appeal is from that order. Appellant. contends that the complaint stated a cause of action; alternatively, appellant avers that if the complaint did not state a cause of action, the unanswered request for admissions supplies the deficiency.
Appellant alleged that on the date of the incident he was visiting in the home of appellee in Garland County; that appellee explained to appellant that appellee was planning to sell her car; and that appellee requested appellant to check the condition of the car. Appellant alleged that while he was checking the car it began rolling and knocked him to the ground, causing specified injuries. Then the paragraph alleging negligence is as follows:
That the injuries and ultimate damages suffered by the plaintiff (appellant) were the direct and proximate result of the negligence of defendant (appellee) in that she had failed to advise the plaintiff (appellant) that the automobile in question had not been placed in gear and had failed to advise the plaintiff (appellant) that the emergency brake had not been set on the automobile.
The complaint was demurrable for failure to state facts which would constitute a cause of action. Ark. Stat. Ann. § 27-1115 (Repl. 1962). The allegations are more in the nature of conclusions rather than facts; it is not alleged that appellee had knowledge of the facts alleged with respect to the car being out of gear and the brake not being set; and it is not alleged as to specifically what incident caused the car to roll.
The basic infirmity in the pleading is the stating of conclusions and we have held such to be insufficient to state a cause of action. Ready v. Ozan Investment Co., 190 Ark. 506, 79 S.W. 2d 433 (1935).
This brings us to the allegation that the unanswered request for admissions supplies any deficiency in the complaint. The trial court held that the request for admissions could not be considered because, there was no certificate of service attached. On July 2, 1973, the court ruled that the request for admissions could not be considered by the court for the reason that there was no certificate of service attached to the copy of the request filed in the court. On the date of the ruling there was nothing in the record to show that the request for admissions had been received by the appellee or her attorney. We do find that subsequent to the ruling there was filed a receipt showing that appellee had signed for a registered document from appellant’s counsel; however, that evidence came too late because it had already been ruled upon. It is also noted that no copy of the request was delivered to appel-lee’s counsel, notwithstanding he had filed an answer. In fairness, however, to counsel for appellant it should be stated that counsel insisted he never received a copy of the answer. Finally, we note that the request for admissions is not set out in the abstract; we are not obliged to ferret the request out of the transcript.
Affirmed. | [
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Tom Glaze, Justice.
Appellant was convicted of kidnapping and rape and sentenced to respective terms of forty years and life imprisonment to be served consecutively. He raises four points for reversal and one has merit. We consider that point first.
Appellant argues the trial court erred by overruling appellant’s objections to five separate comments made by the prosecutor during closing argument that appellant submits referred to his having failed to testify. The trial court also denied appellant’s request for mistrial after the prosecutor’s argument. The text of the prosecutor’s reported comments is as follows:
Ladies and gentlemen, there’s not been one word of testimony that this young lady ever agreed or consented to have sex with that defendant.
***
There’s no doubt and no, and no dispute from the testimony and the evidence that Karol Whitecotton never consented to sexual intercourse with this defendant.
***
Karol Whitecotton testified to it and there’s been no evidence to refute what she said sexual intercourse occurred.
***
There’s no dispute that he had sexual intercourse.
***
You heard Karol Whitecotton’s testimony again that the defendant told her if she didn’t cooperate that he’d have to kill her. There’s been no testimony to rebut that or no testimony inconsistent with that.
***
The law is settled that a direct comment by the government on a defendant’s failure to testify violates the fifth amendment privilege against self-incrimination. Griffin v. California, 380 U.S. 609 (1965). However, in Adams v. State, 263 Ark. 536, 566 S.W.2d 387 (1978), this court reviewed past cases and recognized its difficulty in determining the extent and latitude a prosecuting attorney is permitted in arguing to the jury the posture of the state’s case or in summarizing the evidence when a defendant has failed to take the witness stand. Speaking to this point, the Adams court said as follows:
We do not consider the statement “There has been absolutely no testimony to contradict that” as a prejudicial comment upon appellant-defendant’s failure to testify, inasmuch as counsel for appellant-defendant, indeed, was afforded the opportunity to cross-examine all of the state’s witnesses for the purpose of developing any inconsistencies or contradictions. Therefore, if counsel for appellant-defendant discovered no contradictions in the state’s case, indeed, the prosecuting attorney had every right to call the jury’s attention that there existed no contradictions in the state’s case. We cannot visualize any valid objection to a remark of this nature when it cannot be construed as calculated to call a jury’s attention to the fact that a defendant has failed to take the witness stand.
After the foregoing discussion, the court reversed the trial court’s ruling denying a mistrial. It then concluded that the prosecutor’s comments before it, namely, “To convict him (the defendant) you don’t have to disbelieve any part of their case, because what did the defense, how many witnesses did the defense put on for your consideration?” can be characterized only as calling to the jury’s attention that Adams had not taken the witness stand to testify.
The court’s decision in Bailey v. State, 287 Ark. 183, 697 S.W.2d 110 (1985), relied heavily on the Adams holding when it found Bailey’s fifth amendment privilege had been violated by the prosecutor’s remarks. There, the prosecuting witness testified Bailey took her to his motel room, bound her and raped her several times over a twenty-four-hour period. Two other women testified they saw Bailey and the prosecuting witness near the motel. One said that Bailey and the alleged victim were arm-in-arm and the other said that nothing out of the ordinary occurred. In his closing argument, the prosecutor said, “The only thing that we’ve heard here today about which (sic) occurred in that room is from [the prosecuting witness]. She’s the only person. These two ladies that were called, they weren’t in that room.” In reversing and holding these remarks by the prosecutor were grounds for a mistrial, the Bailey court reasoned that, by saying, “The only thing that we’ve heard today about what happened in that room is from the prosecuting witness,” he must have been referring to Bailey’s failure to testify. No evidence showed the other women had been in the room.
In deciding as we have in Adams and Bailey, the court has adopted a test like the one definitively set out and followed by the 7th Circuit Court of Appeals in Freeman v. Lane, 962 F.2d 1252 (7th Cir. 1992), which states the rule as follows:
Our cases have recognized that a prosecutor may not comment concerning the uncontradicted nature of the evidence when “it is highly unlikely that anyone other than the defendant could rebut the evidence.” United States v. DiCaro, 852 F.2d 259, 263 (7th Cir. 1988). In this situation “when a prosecutor refers to testimony as uncontradicted where the defendant has elected not to testify and when he is the only person able to dispute the testimony, such reference necessarily focuses the jury’s attention on the defendant’s failure to testify and constitutes error.” United States v. Buege, 578 F.2d 187, 188 (7th Cir.), cert. denied, 439 U.S. 871, 99 S.Ct. 203, 58 L.Ed.2d 183 (1978). (Emphasis added.) (A similar rule has been adopted in the First, Fifth and Tenth Circuits; see Ruiz v. United States, 365 F.2d 103 (10th Cir. 1966); Desmond v. United States, 345 F.2d 225 (1st Cir. 1965); Garcia v. United States, 315 F.2d 133 (5th Cir. 1963), cert. denied, 375 U.S. 855 (1963); see also Note, Criminal Procedure — Veiled Reference to Failure of Defendant to Testify Constitutes Reversible Error, 8 UALR L.J. 747 (1985)).
In the present case, the appellant and his victim were alone in his truck when he purportedly raped her. Thus, the prosecutor’s comments that there is no evidence that the victim ever consented to have sex with the appellant necessarily focused on and called the jury’s attention to appellant’s failure to testify because it was highly unlikely that anyone other than appellant could refute such evidence. The same can also be said regarding the prosector’s remark that no testimony was offered to rebut the prosecutrix’s testimony that if she did not cooperate, appellant would kill her. Accordingly, we reverse on this point.
The second issue argued by appellant is the trial court should have granted a mistrial when the prosecutor in his closing argument said, “The victim was telling the truth.” Appellant’s counsel objected to this remark, and the trial court sustained the objection. The trial court further instructed the jury that it was the province of the jury to determine the facts. Despite the trial court’s ruling and admonishment, appellant asked for a mistrial which was promptly denied. We have held that a mistrial will only be declared if any possible prejudice cannot be removed with an admonition to the jury. Ashley v. State, 310 Ark. 575, 840 S.W.2d 793 (1992). We hold the trial court’s admonition was sufficient and the trial court did not abuse its discretion in denying appellant’s motion.
In his third argument, appellant urges the trial court erred in submitting the kidnapping charge to the jury because the evidence or restraint needed for kidnapping did not exceed that normally associated with rape. Under the facts of this case, a person commits the offense of kidnapping if, without consent, he restrains another person so as to interfere substantially with his liberty with the purpose of: inflicting physical injury upon him, or of engaging in sexual intercourse, deviate sexual activity, or sexual conduct with him. Ark. Code Ann. § 5-11-102(a)(4) (1987). The court has stated that only when the restraint exceeds that normally incidental to the crime that the rapist should be also subject to prosecution for kidnapping. The purpose of the restraint may be inferred from circumstantial evidence. Fairchild v. State, 305 Ark. 406, 808 S.W.2d 743 (1991).
Here, appellant met the prosecuting witness and her two teenage friends in a street on Halloween night when appellant was dressed in costume, scaring children by swinging an axe with fake blood on it. The teenagers agreed to accompany him to a haunted house. Instead, appellant stopped at two liquor stores before driving to a field. While parked in the field, appellant threatened the teenagers with a knife and asked the two teenage girls to take off their clothes. He then said that he was merely trying to scare them and began driving around. The teenagers kept telling the appellant that they needed to go home. When appellant stopped his vehicle again two of the teenagers jumped out, but he hung onto the prosecutrix’s arm so she could not escape. Appellant drove to a desolate dirt road where the prosecutrix said the appellant raped her. The prosecutrix testified that after the rape occurred appellant threatened to kill her, but she placated appellant by telling him she hated her mother and she might want to marry him. Appellant drove back into town and stopped twice for gasoline. At the first stop, he saw the prosecutrix trying to get help, and he jumped into the vehicle, pulled her hair and told her to shut up. At the second stop, the prosecutrix managed to escape and obtain help. Clearly, these facts show sufficient evidence of restraint to exceed the restraint necessary to prove the crime of rape. See Lewis v. State, 295 Ark. 499, 749 S.W.2d 672 (1988); Jones v. State 290 Ark. 113, 717 S.W.2d 200 (1986); cf. Shaw v. State, 304 Ark. 381, 802 S.W.2d 468 (1991).
In his final point, appellant recognizes this court has decided cases holding that a person can be convicted of both rape and kidnapping based upon the same criminal episode. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980); Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980). He argues, however, if a person employs no more than the minimum restraint that normally accompanies rape, it constitutes double jeopardy to punish him also for kidnapping. As discussed above, we conclude the restraint employed by appellant exceeded that required in the commission of rape. Therefore, appellant’s argument is without merit.
We affirm on all arguments but point one, which requires us to reverse and remand for a new trial. Pursuant to Ark. Sup. Ct. R. 11(f), we have examined the record and find no other rulings constituting prejudicial error.
Hays and Corbin, JJ., dissent. | [
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Per Curiam.
Appellant has petitioned for reconsideration of her motion for rule on the clerk to lodge the transcript. The record was refused by the clerk, and appellant’s motion for a rule denied by us, because Notice of Appeal was not timely filed. Appellant urges that we treat the failure as an unavoidable casualty, which we have done on occasion when the record was unavoidably tendered out of time. However, the rule of unavoidable casualty applies to the lodging of the record on appeal and not to the failure to file Notice of Appeal, the latter being jurisdictional. City of Hot Springs v. McGeorge Contracting Company, Inc., 260 Ark. 636, 543 S.W.2d 475 (1976) and Ward v. Universal C.I.T. Credit Corp., 228 Ark. 275, 307 S.W.2d 73 (1957). | [
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Humphreys, J.
Appellant brought this suit on the 2d day of January, 1929, against appellees in the Second Division of the Chancery Court of Union County to cancel a deed to 27.64 acres of land in said county, together with the ferry operated therefrom across Ouachita River, executed by Dr. Garrett B. Browne, to J. E. Risher on December 24, 1928, upon the alleged grounds that Dr. Browne was of unsound mind when same was executed, and that appellees procured its execution through undue influence.
Appellees filed an answer to the complaint on January 19, 1929, denying the material allegations therein.
On February 2,1929, Dr. Browne died, and the cause was revived on February 1, 1930.
Thereafter, on May 15, 1930, appellees filed an amended answer and also a cross-complaint alleging therein that the deed sought to be canceled was executed in accordance with and pursuant to an agreement signed and delivered to them by Dr. Browne in November, 1927, in words as follows:
“I, G-. B. Browne, agree to give to J. E. Risher one-half of my income from now on until I take my 'bed and after that all my income. I hereby agree to deed him the 28 acres of land and the ferry and ferry rights. This is binding on me from now on. At my death he shall have all the money, land which I may own. I am to have a home with J. E. Risher the balance of my days for this, and neither of us can back out now or later. I have paid him $20 to bind us. I will make a deed when I return from Illinois, but, should anything happen that I fail to do this, then the property is J. E. Risher’s anyway. He agrees to hold a home for me.
“G-. B. Browne, M. D.”
It was further alleged that after Dr. Browne returned from Illinois he went to live with appellees on January 15,1928, and continued to abide with them until removed to the hospital in Warren on December '26,1928; that soon after taking up his abode with them he had a second stroke of paralysis rendering him helpless, and thereafter they cared for him and nursed him as long as he remained in their home.
The prayer of the cross-complaint was that, in the event the deed should to the land and the ferry rights be canceled, appellees be accorded a specific performance of the agreement.
Appellant filed an answer to the cross-complaint denying that the deed was made pursuant to the alleged agreement or that same was adopted and acted upon by the parties regarding Dr. Browne’s entertainment in appellee’s home, but that, on the contrary, appellees cared for and nursed Dr. Browne in their home for a stipulated consideration of $90 a month.
The cause was submitted to the court upon the pleadings and testimony, resulting in a finding that the deed was voluntarily executed by Dr. Browne pursuant to the agreement made in November, 1927; and that he was mentally capable of executing the deed.
The decree was rendered in accordance with the findings dismissing the complaint of appellant, and the cause is here on appeal for trial de novo.
The record reflects the following undisputed facts: On January 15, 1928, Dr. Browne returned from a visit to Illinois and repaired to the home of appellees where he remained until December 26, 1928, at which time he was removed to Dr. W. L. Hartwell’s hospital at Warren for care and treatment. January 15, 1928, when Dr. Browne took up his abode with appellees, he was paralyzed on one side and needed help to walk. Some time in March, 1928, he had another stroke, and dating from that time ha was bedridden and practically helpless.
On May 15,1928, Dr. Browne executed a will in which he devised one dollar to his daughter and all his other property to Todd Kellar Shaner, a grandchild, in whom he had taken great interest and to whom he was devoted. Some time in the fall of 1928, J. E. Risher went to the home of Jim P. Johnson, a justice of the peace, and requested him to go to their home and take the acknowledgment of a deed from Dr. Browne to him to a tract of land at Moro Bay, together with the ferry rights. When the justice read the deed to Dr. Browne he refused to sign it because it conveyed all he had and was not the paper he expected to sign.
On December 17, 1928, J. E. Risher went from his home at Moro Bay to Warren, at the request of Dr. Browne, to see W. S. Goodwin with reference to a power of attorney, a deed and a will which had been prepared by Judge MeKnight. He directed Mr. Goodwin to redraft the deed so as to eliminate the cause reserving in Dr. Browne the right to control the ferry and ferry privileges. The power of attorney authorized J. E. Risher to attend to all of Dr. Browne’s business and especially to collect the ferry rents. The deed as redrafted conveyed the 27.64-acre tract of land and ferry rights to J. E. Risher and the will devised all of his property to J. E. Risher. J. E. Risher informed Mr. Goodwin that Dr. Browne wanted to consult him. Mr. Goodwin went home with J. E. Eisher, a distance of about six miles, for the purpose of interviewing Dr. Browne, arriving there after sundown, where he spent the night. When Mr. Goodwin entered the room occupied by Dr. Browne, the doctor told him that Mr. Eisher wanted him to sign those papers but that he was not going to do it. After his refusal to sign the papers Mr. Goodwin walked into an adjoining room where Mr. Eisher was standing. Mr. Eisher asked Mr. Goodwin what Dr. Browne said about signing the papers, and was told by him that Dr. Browne was not going to sign anything. Mr. Eisher asked him why, and Mr. Goodwin told him Dr. Browne said that he wanted all that was left to go to his grandson, and that the papers which Eisher wanted Dr. Browne to sign conveyed everything Dr. Browne had to him (Eisher). Mr. Eisher said: ‘ ‘ He ’ll sign them; yes, he ’ll sign them. ” When Mr. Eisher came out of Dr. Browne’s room after taking his supper to him, he said, “I asked* him if he was going to sign those papers and he said to wait until in the morning, and I will see Mr. Goodwin.” The next morning Mr. Eisher told Mr. Goodwin he had asked the doctor if he was going to sign those papers, and Dr. Browne told him that he thought he would, but that he wanted to talk to you before he did so. Mr. Goodwin went in Dr. Browne’s room about 7:30 on the morning of the 18th and remained until 11 o’clock. During the time Mr. Eisher came into the room about six times. He asked Dr. Browne in a commanding sort of way, “Doctor, aren’t you going to sign those papers?” and the doctor said “No.” Dr. Browne then expressed a desire to go to the hospital at Warren for treatment, and Mr. Goodwin replied that he would communicate with his relations, and if they were willing he would make arrangements to take him to the hospital. Mr. Goodwin left and immediately communicated with Dr. Browne’s relatives and received directions to take Dr. Browne to the hospital, which he did on December 26, 1930, over the protest of appellees. On the way to the hospital Dr. Browne told Mr. Goodwin and Dr. Martin, who was assisting in his removal to the hospital, that he signed some papers, but had done so under threat of the Rishers that unless he signed them that they would move away and let the hogs and dogs get him. (The Rishers denied making such a threat). The papers referred to consisted of a deed and a will executed by Dr. Browne on December 24, 1928. The deed is the one redrafted by Mr. Goodwin and conveyed the 27.64 acres in question with ferry 'rights to J. E. Risher in consideration of maintenance and support. The will devised all his property to J. E. Risher.
On the 26th day of December, 1928, when Dr. Browne was brought to the hospital, he was afflicted with tuberculosis, cancer and paralysis. He was unable to use any part of his body on the left side and could only use his right hand a little. He had suffered two strokes of paralysis, one in 1927 and the other in the spring of 1928. The record is silent concerning the first appearance of tuberculosis and cancer. As a result of his bedridden condition after March, 1928, he had a sore upon his back which was black and contained proud flesh. On December 31, 1928, appellant was appointed guardian of the person and estate of Dr. Browne, a person of unsound mind. On February 2, 1929, Dr. Browne died. The purported last will and testament of Dr. Browne, executed on the 24th day of December, 1928, was contested by the beneficiary in the will executed on May 15, 1928, in the probate court and in the circuit court on appeal, upon the same grounds that the deed in question is sought to be canceled; and the judgment in both courts denied to probate the. will of date December 24, 1928, and admitted to probate the will of date May 15,1928..
The direct testimony introduced by the appellant and that introduced by appellees upon the issues of the state of mind of Dr. Browne on December 24, 1928, the date he executed the deed in question, and whether undue influence was used to procure the deed, is conflicting.
Dr. C. M. Martin, who helped remove Dr. Browne to the hospital on December 26, 1928, testified that there was nothing to indicate a change in his condition for the worse on or after the 24th day of December, 1928, and that Dr. Browne on either day was not capable of appreciating or retaining in his memory the extent of his property or relation of persons he might include or exclude from participating in his estate.
Dr. W. L. Hartsell who attended him three or four times a day and kept a nurse with him constantly after he entered the hospital testified, in substance, to the same effect as Dr. Martin. He positively stated that Dr. Browne had a low mentality and frequently contradicted himself and was unable to concentrate on any subject over three minutes.
Mrs. Fannie Denson, who nursed Dr. Browne after he entered the hospital, testified that his condition was very serious; that he had a black sore about the size of her hand on his back on which the flesh was about ready to drop off; that his mind would just come and go.
R. M. Hutchins testified that he was called to see Dr. Browne on December 22, 1928, to consult him with reference to instituting a suit against his daughter, Mrs. Norris, to cancel through court proceedings a deed which he had previously executed to her; that Dr. Browne gave him information that he desired and upon which he brought the lawsuit; that he saw him again about the middle of January, 1929, and discussed the lawsuit with him; and, that from these two interviews he discovered that Dr. Browne was physically incapacitated, but that he was mentally awake and sound.
Dr. J. W. Shaw testified that he was personally acquainted with Dr. Browne, and that on the 20th day of December, 1928, he was called to see Mr. Risher’s little daughter; that he went into Dr. Browne’s room and talked with him; that, although bedridden and in a helpless condition, he concluded, from his conversation that his mind was sound.
Dr. W. H. Reasons testified that he had a talk with him in Risher’s home in Moro Bay either December 22 or 23, 1928, and that, after conversing with him for about fifteen or twenty minutes, lie impressed him as being altogether sane.
A number of lay witnesses, introduced by appellees, testified that they had visited Dr. Browne while he was (making his home with the Bishers, and that their several conversations with him indicated that he was in his right mind.
"W. S. Goodwin testified that on the morning of the 18th of December, 1928, Dr. Browne said that the reason he would not sign the deed was that his contract with the Bishers was that he would pay them for their services, and that he had done so; that Dr. Browne told him in the presence of Mr. Bisher that he had $1,100 in the bank, and that Mr. Bisher allowed both of them to rest under the belief that the money was still in the bank when as a matter of fact it had already been drawn out by Mr. Bisher; that Dr. Browne also requested Mr. Bisher to turn over two checks to him to deposit and that at first Mr. Bisher agreed to do so but later said he had already cashed them, and, in justification, claimed that Dr. Browne had made him a present of them, Dr. Browne denied having done so; that during the altercation over the checks Dr. Browne claimed to own the automobile Mr. Bisher was using, to which Mr. Bisher replied, “Only as long as you live.” Dr. Browne then asked, “Why did you say that?”1 Mr. Bisher answered, ‘‘When you die, I am going to have that car.”
L. L. Smith testified that during the month of September, 1928, he was in the home of J. E. Bisher at Moro Bay and had a conversation with Dr. Browne in the presence of Mr. Bisher with reference to an agreement Dr. Browne made with Bisher when he came to his home concerning how much he was to pay the Bishers for keeping him; that during the conversation Mr. Bisher wanted Dr. Browne to give him a check; that Dr. Browne told Mr. Bisher he had already paid him $2,500, and that he had only agreed to pay him $90 a month for taking care .of him; that Mr. Bisher was present and did not deny that the agreement was that Dr. (Browne should pay him $90 a month; that he was present on the 15th day of May, 1928, when Dr. Browne executed a will in favor of his grandson, Todd Kellar -Shaner; that Mr. Risher was also present; that Mr. Risher put his arm under Dr. Browne’s shoulder and raised him up when he signed the will; that when Dr. Browne signed the will Mr. Risher made no reference to a written contract having 'been executed by him in November, 1927, and entered no protest against the" execution of the will by Dr. Browne.
Appellant introduced testimony tending to show that appellee, J. E. Risher, had received in the neighborhood of $2,500 in cash from Dr. Browne during the 11 months he was in his home.
Mrs. Pearl Holmes testified that Dr. Browne returned from Illinois early in 1928; that she heard him tell Mrs. Risher that if she would take care of him he would will her everything he .owned at his death; that he made no mention of his grandson at the time.
Elvin Parker testified that Dr. Browne told him in August or September, 1928, that his daughter had kicked him out, and that he intended for Mr. Risher to have everything he owned at his death; that at the time he made no mention of his grandson.
Allen 'Shinpock testified that Dr. Browne told him the latter part of 1927 that he was going to will the rest of his property to Elmo Risher, and said nothing about his daughter or his grandson at the time.
J. E. Risher testified that the contract was executed in November, 1927, agreeing to give him his property, and that the deed and will were made pursuant to the written contract; that he and his wife had not made any threats or used any force to procure the deed and will in his favor from Dr. Browne; that the deed and will were executed by Dr. Browne voluntarily; that he was not present and did not hold up Dr. Browne’s head on May 15, 19'28, when he executed the will devising all of his property to his grandson; that he received only about $1,200 in cash from Dr. Browne during the time he was in his home; that he did not hear Dr. Browne say anything to Mr. Goodwin about an agreement to pay him for his services and that he had done so; that he did not deceive him about Dr. Browne having money in the bank and did not have any altercation with him in Mr. Goodwin’s presence concerning checks or the ownership of the automobile; that he did not hear Dr. Browne say anything to L. L. Smith about an agreement to take care of the doctor for $90 a month, and that no such statement was made to Smith in his presence; that he objected to Dr. Martin and Mr. Goodwin taking Dr. Browne to the hospital because he did not regard it as necessary, and because Dr. Browne was satisfied to remain with them.
Mrs. J. E. Risher said that no force was used by them in procuring the deed or will, and that Dr. Browne was removed to the hospital by force; that the deed and will were made to J. E. Risher pursuant to a promise to convey everything he had to her husband if they would allow him to make his home with them.
Appellant contends for a reversal of the findings and decree of the chancery court upon the alleged ground that both the findings and decree were contrary to the weight of the evidence. We agree with him in this contention. The deed was executed at a time when Dr. Browne was suffering from a complication of diseases. His long suffering had rendered him a physical wreck. He had had two paralytic strokes resulting in his inability to move any portion of his body except his right hand a little. He had been bedridden since March, 1928, and had one bed sore upon his back from which the flesh was about to drop. The physicians who attended him in a professional capacity on and after the"26th day of December, 1928, two days after the execution of the deed in question, testified that he could not have been mentally capable of knowing the extent of his property on December '24, 1928. The nurse who cared for him corroborated their testimony. Their conclusion as to his mental incapacity seems to be the natural result of his physical condition. Dr. Browne’s physical inability is an admitted fact in the record. It is true a number of witnesses, including two physicians, testified that Dr. Browne was sane near the time the will was executed, hut we are convinced from all the testimony that he had very little, if any, resisting mental power left at the time he executed the deed and will. According to the weight of the testimony he executed a deed and will to Mr. Risher which he had refused to execute a short time prior to the execution thereof.
It is also reflected by the record that Mr. Risher was very anxious to get both instruments signed by Dr. Browne. Mr. Risher does not deny Mr. Goodwin’s statement that he stoutly insisted upon Dr. Browne signing the power of attorney, the will and the deed on the night of the 17th and the morning of the 18th day of December, 1928. Mr. Risher admits that he refused to sign either in the presence of Mr. Goodwin. The testimony of Jim P. Johnson stands in the record uncontradicted that Dr. Browne also refused to execute the deed. We think the only conclusion that can be drawn is that Dr. Browne executed the deed at a time when he was weak in mind either through undue persuasion or under threat, and that the execution thereof was not a voluntary act on his part.
It is argued by appellees that, even though the deed should be canceled, the writtep agreement signed by Dr. Browne in November, 1927, should be upheld and the findings and decree of the chancellor should be sustained under the terms of the agreement. The agreement was not heard of until it was introduced in the trial contesting the will in which J. E. Risher was made the beneficiary. The contract was not set up in defense of this action during the lifetime of Dr. Browne. No mention was made by J. E. Risher of such a contract according to the testimony of W. S. Goodwin and L. L. Smith, both of whom state that Dr. Browne said in the presence of J. E. Risher that the contract was that he should pay the Rishers $90 a month for his services, and that he had more than paid them. It is true that Mr. Risher denied that such a statement was made in his pres ence either to Mr. Goodwin or to Mr. Smith, but he also contradicted the testimony of L. L. Smith relative to the execution of a will on the 15th day of May,' 1928, in favor of Dr. Browne’s grandson. Mr. and Mrs. Bdsher both testified that they did not know of the execution of the will on the 15th day of May, 1928, and just how it could have been executed in their home on that date, by a bedridden man, without some knowledge on their part of him having done so is hard to understand. Ve think the only reasonable conclusion that can be reached under the testimony detailed is that the written .contract was abandoned, and that an oral agreement in substitution therefor was made between Dr. Browne and the appellees to the effect that he would pay them $90 a month for their services during his life, and that according to the undisputed evidence he paid at least that much, if not more, before he left their home.
The decree is therefore reversed, and the cause is remanded with directions to the chancery court to cancel the deed and the written contract introduced in' evidence. | [
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Jack Holt, Jr., Chief Justice.
The appellant, Michael Dale Bowden, was convicted of capital murder and sentenced to life imprisonment without parole. For reversal, he argues that the trial court erred in (1) admitting identification testimony into evidence; (2) finding there was probable cause for arrest; (3) ruling that a child witness was competent to testify; (4) refusing to allow the defense to play a tape to question the credibility of a child witness; (5) allowing testimony from an expert witness regarding an experiment he conducted; and (6) admitting into evidence testimony regarding statements not furnished in discovery. Inasmuch as the court erred in two respects, we reverse and remand for a new trial.
At 1:55 a.m. on April 19, 1987, Gary Keeter, a Harrison police officer, went to the home of Johnny Hefley in response to a call that there was a disturbance there. Upon the officer’s arrival, a man from across the street told him that he had “a little boy over at his home who says his mom and dad is bleeding.” Upon entering Hefley’s residence, Keeter saw the bleeding bodies of Johnny Hefley and Cindy Bowden, Hefley’s former wife. In addition, Keeter saw a number of nine millimeter shell casings lying on the floor.
Other officers arrived on the scene a few minutes later. According to Officer Glen Redding, the police were able to make the following factual observations at this point: (1) the victims were shot to death; (2) neither victim appeared to be armed; (3) there was no forced entry into the residence; (4) in light of the location of the bodies (Hefley’s was slumped over in a chair; Bowden’s was on the floor beside Hefley’s.), what they were wearing, and the fact that there were no signs of forced entry, Hefley and Bowden apparently knew their murderer.
Upon being advised that Hefley’s and Bowden’s five-year-old son, John David Hefley, was across the street at a neighbor’s residence, Officer David Cone spoke with him. John David told the officer that he had been in his bedroom and heard what he thought was a fight between his mother and father and that he got out of bed, walked into the living room, and found his mother and dad lying on the floor. The officer then asked him if anyone else had been there that night. John David replied, “Michael Bowden from Texas.”
Officers at the scene also talked with Michael James, who lived two houses down from the Hefleys’ home. According to James, as he was driving up to his house earlier that night around 1:30 a.m., he noticed a late 70’s dark blue Ford pickup truck parked on the street in front of the Hefleys’ home. A few minutes later, while he was at his home, James heard a loud metallic banging noise and a female voice “trying to get them to stop.” In all, he heard seven or eight of these noises. Immediately thereafter, he heard a car door slam and gravel spin out from under the tires. He then looked out of his window and saw the pickup which had been parked in front of the Hefleys’ residence leaving the scene rapidly. As the truck turned the corner, he heard something sliding across its bed.
After learning that Michael Bowden had been in the house that night, the police immediately attempted to gain information about him. Relatives of Cindy Bowden informed the police that Michael Bowden was Cindy Bowden’s husband and that two weeks prior to the murders, she had left him in Waxahachie, Texas, where they were living, and returned to Harrison to live with her former husband, Johnny Hefley.
Carl Bowden, Michael’s brother, informed the police that Michael was driving Carl’s tan or cream-colored 1979 Ford pickup truck and that the bed of the truck contained plastic milk crates.
Christine Franz, Michael and Cindy Bowden’s daughter, informed police that Michael had contacted her twice on April 18,1987, in an attempt to contact Cindy Bowden. In addition, the police talked to Cindy’s mother, who told them that Cindy was afraid of Michael because he had recently found out that Cindy was living with Johnny Hefley.
At 9:00 a.m. on April 19, Rondall Campbell told police that seven days prior to the murders, while he was at Hefley’s residence, Cindy Bowden had a telephone conversation with Michael Bowden’s sister, Kathleen Bowden Harless. According to Campbell, Harless told Cindy that Michael was suicidal. In addition, he told police that Cindy informed him that she believed Harless had made threatening calls to her the day before.
In talking with the Waxahachie, Texas, police, the Harrison police learned that Michael Bowden previously had been convicted of a homicide that involved the breakup of a marriage.
On April 19,1987, the Waxahachie police issued a warrant for Michael Bowden’s arrest, and at approximately 1:30 p.m., they arrested him at Carl Bowden’s home in Waxahachie.
On April 22, the police brought Bowden back to Arkansas. Upon arrival at the Harrison police station, he invoked his right to counsel.
On April 23,1987, an information was filed against Bowden. On the same day, police officers, in attempt to obtain additional evidence that Bowden had been in Arkansas on the night of the murders, showed two pictures of Bowden to Joe Williams, an attendant at a service station in Conway, Arkansas, and asked him if he had seen the individual in the pictures. Williams replied that he had not. The police then showed him a driver’s license picture of Bowden depicting him with glasses. Williams told police he had seen the individual in the picture on April 19 between 2:00 and 3:00 a.m. Williams also told police that Bowden was driving an older light colored truck and gave the police a detailed description of him.
On April 24, Bowden was arraigned. Public Defender John Nichols appeared at the arraignment as Bowden’s counsel.
On the morning of April 27, the police advised Bowden that a lineup would be conducted later in the day. According to Officer Glen Redding, he asked Bowden if he had an attorney he would like to contact prior to the lineup, and Bowden advised him that he or his brother had been in contact with Buford Gardner and that he anticipated Mr. Gardner being hired as his attorney. In addition, Redding informed Bowden that John Nichols would be present at the lineup.
Redding then transported Bowden from the sheriffs office to the police department, where the lineup was to be held. Upon arrival at the police station, Redding contacted both Nichols and Gardner. Gardner stated he did not represent Bowden and would not attend the lineup. Nichols indicated he did not believe he could represent Bowden because of his lack of experience. According to Redding, he then informed Bowden that neither would be present, and Bowden did not thereafter request an attorney.
Bowden’s account is somewhat different. According to Bowden, Redding told him that he had the right to an attorney at the lineup but never asked him if he wanted an attorney present. In addition, Bowden asserts that after they arrived at the police station, Redding told him that John Nichols was on the way over and just before the lineup, Redding told him that Nichols was there.
The lineup was then held without counsel being present, and Joe Williams positively identified Bowden as the man he saw at the service station on the night of the murders.
I. IDENTIFICATION TESTIMONY.
Bowden argues that the trial court erred (1) in admitting into evidence testimony by Joe Williams that he identified Bowden in the lineup in that the lineup was conducted without counsel present and (2) in allowing identification testimony at trial by Williams that during the early morning hours of April 19, 1987, Michael Bowden stopped at a service station in Conway where Williams was working in that this evidence was tainted by the illegal lineup procedure. We conclude that the trial court erred in allowing Williams’ testimony regarding the lineup and reverse and remand for a new trial.
Bowden clearly had the right to counsel at the post-information lineup absent a knowing and intelligent waiver. United States v. Wade, 388 U.S. 218 (1967); Loane v. State, 271 Ark. 797, 611 S.W.2d 190 (1981); Jackson v. State, 249 Ark. 653, 460 S.W.2d 319 (1970). The burden is upon the State to show that an accused’s waiver of his constitutional right to counsel at a lineup was given voluntarily, knowingly, and intelligently. Loane, supra. The determination of whether there has been an intelligent waiver of right to counsel depends upon the particular facts and circumstances of the case, including the background, experience and conduct of the accused. Johnson v. Zerbst, 304 U.S. 458 (1930). A trial court’s ruling on waiver of counsel will not be set aside unless clearly erroneous. Loane, supra.
We conclude from the facts and circumstances before us that Bowden did not knowingly relinquish or abandon his right to counsel at the lineup. There was testimony by Redding that after he informed Bowden that counsel would not be present, Bowden did not request an attorney. However, he was not asked if he chose to proceed [See Loane, supra], but simply placed in the lineup. In sum, the State did not meet its burden of showing an intelligent and voluntary waiver by Bowden of his right to counsel.
The presence of counsel at a lineup serves not only to allow an informed challenge to be made to identification testimony at trial in order to diminish the weight given to it by the jury, but also to minimize the likelihood of an unduly suggestive confrontation. Wade, supra; United States v. Allen, 408 F.2d 1287 (D.C. 1969). As Wade recognizes, “[t]he trial which may determine the accused’s fate may well not be in the courtroom but that at the pretrial confrontation, with the State aligned against the accused, the witness the sole jury, and the accused unprotected against the overreaching, intentional or unintentional, and with little or no effective appeal from the judgment there rendered by the witness — ‘that’s the man.’ ”
Since the police denied Bowden his sixth amendment right to counsel at the lineup, any testimony concerning the lineup identification by Joe Williams was, therefore, inadmissible at trial. Gilbert v. California, 388 U.S. 263 (1967). See Wade, supra. Because the trial court allowed his testimony, we reverse on this point.
Since we are remanding this case, we will address the issue of the admissibility of the in-court identification testimony of Joe Williams, as well as other issues which are likely to arise on retrial.
We first note that ordinarily we would remand this case to the trial court so that it could conduct a pretrial hearing to determine whether the in-court identification was tainted by the improper lineup identification. Burnett v. State, 295 Ark. 401, 411, 749 S.W.2d 308 (1988). See also Wright v. State, 258 Ark. 651, 528 S.W.2d 905 (1975). However, this procedure is not required (1) when we can ascertain from the record whether the in-court identification was tainted and therefore should be suppressed or (2) when the trial court considered this issue. See Burnett, supra. See also Mayes v. State, 264 Ark. 283, 571 S.W.2d 420 (1978).
Under the circumstances, we find it unnecessary to remand to the trial court for this determination in that (1) the trial court ruled that the in-court identification was based upon Joe Williams’ independent recollection, not upon the previous lineup and (2) we can ascertain from the record whether the in-court identification was tainted by the lineup identification.
We do not reverse a trial court’s ruling on the admissibility of an in-court identification unless, under the totality of circumstances, it is clearly erroneous. Banks v. State, 283 Ark. 284, 676 S.W.2d 459 (1984); Kellensworth v. State, 278 Ark. 261, 644 S.W.2d 933 (1983).
Notwithstanding the fact that counsel was improperly denied at a lineup, a witness who identified the accused at the lineup may identify the accused at trial provided the prosecution can establish by clear and convincing evidence that the in-court identification was based upon independent observations of the suspect rather than on the constitutionally infirm lineup identification. Wade, supra. See Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982); Montgomery v. State, 251 Ark. 645, 473 S.W.2d 885 (1971).
Reliability is the linchpin in determining the admissibility of identification testimony. Manson v. Brathwaite, 432 U.S. 98 (1977); Banks, supra; Whitt v. State, 281 Ark. 466, 664 S.W.2d 876 (1984). See also Maulding v. State, 296 Ark. 328, 757 S.W.2d 916 (1988). In determining reliability, we examine the following factors: (1) the prior opportunity of the witness to observe the alleged act, (2) the accuracy of the prior description of the accused, (3) any identification of another person prior to the lineup, (4) the level of certainty demonstrated at the confrontation, (5) the failure of the witness to identify the defendant on a prior occasion, and (6) the lapse of time between the alleged act and the lineup identification. Wade, supra; Manson, supra; Maulding, supra; Banks, supra.
We turn, then, to the facts of this case and apply the applicable analysis:
1. Opportunity to observe. When Bowden was paying for gas, he talked with Williams for a few minutes and then stood beside the station door for a couple of minutes.
2. Accuracy of description. Bowden’s pre-lineup description was extremely accurate and included Bowden’s height, weight, hair, and the fact he wore glasses.
3. Identification of another person. Williams did not identify any other person prior to the lineup.
4. Level of certainty. Williams was positive in his identification of Bowden.
5. Failure to identify. There was no failure to identify on an occasion prior to the lineup.
6. Time between the alleged act and the lineup identification. Approximately eight days elapsed between the time that Williams observed Bowden and the lineup identification.
In examining the totality of the circumstances, we cannot say that the trial court’s admission of the in-court identification was clearly erroneous. The evidence is clear and convincing that the in-court identification was based on observations independent of the lineup identification. Wade, supra.
II. OTHER ISSUES ON REMAND.
A. ADMISSIBILITY OF THE FRUIT OF BOWDEN’S ARREST.
Bowden contends that the trial court erred in finding there was probable cause to arrest him and therefore in admitting into evidence tainted fruit of the illegal arrest: custodial statements he made to police; photographs of him that were obtained at the time of arrest; fingerprint samples; and the in-court identification by Joe Williams. We disagree.
Probable cause exists where there is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe that a crime has been committed by the person suspected. Hines v. State, 289 Ark. 50, 709 S.W.2d 65 (1986). Probable cause to arrest does not require the quantum of proof sufficient to sustain a conviction. Burks v. State, 293 Ark. 374, 738 S.W.2d 399 (1987). Determination of probable cause is said to be based upon factual and practical considerations of everyday life upon which ordinary men, not legal technicians, act. Hines, supra. A non-technical approach correctly balances the competing interests of the individual and society, so that law enforcement officers will not be unduly hampered, nor law abiding citizens left to the mercy of overzealous police officers. Id. In making the determination of probable cause, we are liberal rather than strict, Sanders v. State, 259 Ark. 329, 532 S.W.2d 752 (1976), and the appellant has the burden of demonstrating that the trial court’s finding that the arrest was legal is incorrect. Munnerlyn v. State, 292 Ark. 467, 730 S.W.2d 895 (1987).
The Harrison police knew the following facts prior to arresting Bowden:
(1) The circumstances surrounding the victims’ homicides indicated that they knew their murderer.
(2) According to John David Hefley, Michael Bowden was at the Hefleys’ residence on the night of the murders.
(3) According to Carl Bowden, on the night of the murders, Michael was driving Carl Bowden’s 1979 Ford pickup, the bed of which contained milk crates.
(4) On the night of the murders, a neighbor, Michael James, spotted a late 70’s Ford pickup parked in front of the Hefleys’ residence. A short time later, he heard some loud banging noises and a female voice “trying to get them to stop.” The pickup then sped away. As it turned the corner, James heard something sliding around in the bed of the truck.
(5) Christine Franz related information that Michael Bowden tried to contact Cindy Bowden on the day of the murders.
(6) Cindy Bowden’s mother claimed Cindy was afraid of Michael Bowden because he had recently found out Cindy was living with Johnny Hefley.
(7) According to Rondall Campbell, Cindy Bowden told him she believed that Michael Bowden’s sister had made threatening calls to her seven or eight days prior to the homicides.
(8) Michael Bowden previously had been convicted of a homicide that involved the breakup of a marriage.
We conclude that these facts and circumstances are sufficient to establish probable cause to arrest Bowden. Therefore, the trial court did not err in admitting the fruit of the arrest.
B. COMPETENCY OF A CHILD WITNESS.
Bowden argues that the trial court erred in ruling that John David Hefley was competent to testify. We disagree.
The guidelines established by this court with respect to competency of a witness enunciated in Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986), are:
[t]he ability to understand the obligation of an oath and to comprehend the obligation imposed by it; an understanding of the consequences of false swearing; and the ability to receive accurate impressions and to retain them, to the extent that the capacity exists to transmit to the fact finder a reasonable statement of what was seen, felt or heard [quoting Chambers v. State, 275 Ark. 177, 628 S.W.2d 306 (1982)].
“As long as the record is one upon which the trial judge could find a moral awareness of the obligation to tell the truth and an ability to observe, remember and relate facts, we will not hold that there has been a manifest abuse of discretion in allowing the testimony.” Jackson, supra; Hoggard v. State, 277 Ark. 117, 640 S.W.2d 102 (1982), cert. denied, 460 U.S. 1022 (1983).
John David’s testimony at the competency hearing was not a model of lucidity. It contained inconsistencies, non-verbal responses, and long pauses. As to the obligation of the oath and the consequences of false swearing, he indicated (1) that he knew how important it was to tell the truth and he could do so if called upon to testify again; (2) that he might get into trouble or go to jail if he did not tell the truth or if he lied; and (3) that the truth is telling just what he knew or just what he saw and not making up a story.
In addition, throughout his testimony he showed an ability to recall and give accurate impressions of reality. He knew that his parents died at his house, that his Easter basket contained a football, and that he lived with Michael Bowden in Texas.
Giving due regard to the trial court’s superior ability to observe John David Hefley testify, we conclude that it did not abuse its wide discretion in ruling John David was competent to testify.
C. ADMISSIBILITY OF A TAPE RECORDING.
Bowden argues that the trial court erred in not allowing the defense to introduce into evidence a tape recording of the competency hearing to show that John David Hefley was coached between the hearing and the trial. We hold to the contrary since Hefley admitted that he had been coached.
The extent of coaching of a witness is a relevant inquiry to test the credibility of a witness. See Geder v. United States, 425 U.S. 80, 89 (1976). That a witness had been coached is a fact that may indicate bias. John E.B. Myers, Child Witness Law and Practice, § 4.57 (1987). The bias of a witness is not a collateral matter, and extrinsic evidence is admissible thereon. Kellensworth v. State, 275 Ark. 252, 631 S.W.2d 1 (1982). If a witness denies or does not fully admit the facts claimed to show bias, the attacker has a right to prove these facts by extrinsic evidence. McCormick Handbook of the Law of Evidence, § 40 (3rd ed. 1984).
John David Hefley’s testimony at the competency hearing differed from that at trial. The defense established on cross-examination that he practiced with or was coached by the prosecutor between the competency hearing and trial. Subsequently, defense counsel asked the court to allow him to play the tape of John David’s testimony at the competency hearing for the jury to show that he was coached. The trial court denied this request.
Inasmuch as John David admitted he was coached by the prosecution, it was within the trial court’s wide discretion to decide whether the defense could introduce extrinsic evidence to show the extent of bias. We find no abuse of discretion.
D. TESTIMONY REGARDING EXPERIMENT.
Bowden contends that the trial court erred for three reasons in allowing the testimony from an expert witness for the State, Mike Vowell, regarding a photographic experiment he conducted: (1) Vowell’s testimony as an expert witness invaded the province of the jury; (2) the prosecution did not lay a proper foundation that he was qualified to testify in the area of lighting; and (3) the prosecution did not lay a proper foundation for the introduction of evidence concerning the experiment because it did not show that the experiment as conducted under substantially identical conditions and circumstances to those existing in the case. We hold to the contrary.
At trial, the State called Michael James who testified, among other things, that as he was returning to his home on the morning of April 19,1987, he saw a late 70’s Ford parked in front of the Hefleys’ residence. When asked on direct examination his recollection of the description of the pickup truck, he stated:
Well, it was dark on the street. They don’t have a street light or didn’t at that time have a street light on that corner. As I came up around Tammy’s car, I saw it straight head-on, you know, by the grill and everything. It was a late 70’s Ford. I could tell you that, you know, by the grill and everything. I used to have a Ford. As I went beside it, I had the distinct impression it was dark blue. . . .
Mr. James also testified that shortly after arriving at the home, he heard seven or eight metallic banging noises. He then heard a vehicle door slam and looked out of his window and saw the pickup truck speeding away.
At trial, it was established that Michael Bowden was driving a tan or cream-colored 1979 Ford pickup on the night of the murders.
The State then called Vowell, a photographer with the Arkansas Crime Lab, as its next witness. Prior to Vowell’s testimony, the prosecution advised the court:
At my request he went up the scene of the crime and he photographed the crime scene under lighting situations that existed on the night of April 19. It will reflect how a truck would appear on that darkened street under those circumstances.
Vowell first testified (1) that he has been the chief photographer with the Arkansas Crime Laboratory since 1982 and that he does microscopic, infra red, and ultra violet work; (2) that he was trained in surveillance photography from 1970 to 1980; and (3) that he owned a photographic studio for three years.
Defense counsel objected at this point on the grounds that the State had failed to lay a proper foundation that Vowell was qualified to testify in the area of lighting. The court overruled the objection. Thereafter, Vowell testified (1) that his assignment was to photograph a vehicle in low light conditions at night; (2) that he obtained a light colored Ford pickup and a light yellow piece of metal approximately three feet by two feet; and (3) that he photographed these items in front of the Hefleys’ residence at night using only the available street light.
Next, the prosecution asked Vowell to identify three photographs he took of the truck. Defense counsel objected on the basis that the State had failed to lay a proper foundation that the experiment was conducted under the same circumstances that existed on the night of April 19. The trial court overruled the objection.
Vowell then testified (1) that the color of the truck he photographed and the color of the truck driven by Michael Bowden were slightly different; (2) that he took the photographs on the street where the officers told him that Bowden’s vehicle had been seen; and (3) that he took the photographs at about 10:00 o’clock at night under heavy overcast skies with one street light approximately one block away.
After Vowell described the photographs, the prosecution introduced them into evidence over defense counsel’s objection. Thereafter, Vowell testified (1) that the photographs were a fair and accurate representation of the scene as it appeared on that night and (2) that if headlights hit the vehicle head on, it would appear to be the true color of the vehicle.
Finally, on cross-examination, he testified (1) that he was forty feet away from the pickup truck when he photographed it, (2) that he did not know exactly where the truck was located on the night of the murder, and (3) that he did not photograph the truck under headlights.
Bowden first argues that the trial court erred in allowing Vowell to testify as an expert because his testimony invaded the province of the jury. We disagree.
The general test for admissibility of expert testimony is whether the testimony will aid the trier of fact in understanding the evidence or determining a fact issue. Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988). An important consideration in determining whether the testimony will aid the trier of fact is whether the situation is beyond the trier of fact’s ability to understand and draw its own conclusions. Id. See Johnson v. State, 292 Ark. 632, 732 S.W.2d 817 (1987).
Since the average juror would not know the effect low lighting produces on a tan truck, Vowell’s testimony thereon aided the jury in understanding this question. Therefore, Vowell’s testimony did not invade the province of the jury and was admissible.
Bowden also argues that the trial court erred in allowing Vowell to testify because he was not properly qualified to testify as an expert in the area of lighting. We again disagree.
The determination of the qualifications of an expert witness lies within the sound discretion of the trial court, and his decision will not be reversed absent an abuse of discretion. Cathey v. Williams, 290 Ark. 189, 718 S.W.2d 98 (1986). Robinson v. State, 274 Ark. 312, 624 S.W.2d 435 (1981). The standard for measuring the qualifications of an expert witness is flexible, and if some reasonable basis exists from which it can be said that the witness has knowledge of the subject beyond that of persons of ordinary knowledge, his testimony is admissible. Dildine v. Clark Equipment Co., 282 Ark. 130, 666 S.W.2d 692 (1984).
Vowell’s testimony concerning his extensive experience in photography was sufficient to qualify him as an expert in the area of lighting. As a photographer, his knowledge of lighting is markedly beyond that of an ordinary person. We find no abuse in discretion.
Finally, Bowden argues that the trial court erred in allowing testimony regarding the experiment and photographs of it in that prosecution did not show that Vowell conducted the experiment under substantially identical conditions and circumstances to those existing in the case. We hold to the contrary.
The admissibility of demonstrative evidence is in the wide discretion of the trial judge. Rasmussen v. State, 277 Ark. 238, 641 S.W.2d 699 (1982). When a test or experiment is an attempt to reenact the original happening, the essential elements of the experiment must be substantially similar to those existing at the time of the original occurrence. Carr v. Suzuki Motor Co., 280 Ark. 1, 655 S.W.2d 364 (1983).
Vowell did not take the photographs in question in exactly the same conditions as on the night of the murder. For one thing, the photographs were not taken with headlights shining on to the truck. However, substantial similarity is all that is required.
Vowell took the photographs of the truck at essentially the same location, the same time, and under the same lighting conditions as that on the night of the murder. Under the circumstances, we find that the trial court did not abuse its discretion in admitting into evidence testimony regarding this experiment or the photographs of it.
E. STATEMENTS NOT FURNISHED IN DISCOVERY.
We agree with Bowden that the trial court erred in allowing testimony regarding statements not furnished in discovery.
On May 4,1987, almost four months prior to trial, Bowden filed a motion for discovery in which he requested, among other things, that the prosecuting attorney disclose “any written or recorded statements and the entire substance of any oral statements made by the defendant.” On June 26,1987, the State filed its response listing only statements made to law enforcement officers. Subsequently, Bowden’s counsel made oral requests for the disclosure of statements allegedly made by Bowden.
At trial the State called Shirley Duncan, Cindy Bowden’s mother, to testify concerning the substance of a telephone conversation she had with Michael Bowden prior to the murders. The following exchange then took place:
PROSECUTOR: Now, during that period of time, did you hear from Michael?
MS. DUNCAN: I heard from Michael; he called me.
PROSECUTOR: What was his call? What did he say?
MS. DUNCAN: He said, I brought your babies back. I said, I know.
PROSECUTOR: And then what did he say?
MS. DUNCAN: We talked. He wanted to know if I knew why Cindy came home. I told him I didn’t know, that I had tried to get her to stay and she wouldn’t.
PROSECUTOR: When you said you didn’t know, was that the truth?
MS. DUNCAN: No, it wasn’t the truth.
At this point, defendant’s counsel objected, and the following discussion occurred at the bench:
MR. GARDNER [defense counsel]: Your honor, I object at this point to any conversation that the witness had with Michael Bowden if she intends to relate testimony regarding statements made by Michael Bowden. I requested from the prosecuting attorney all statements he had or the substance thereof and we have not been furnished with any of this.
PROSECUTOR: The law requires that we furnish statements taken from law enforcement. Furthermore, Mr. Gardner had been furnished this. I furnished him a copy of this lady’s statement as regards this telephone call.
MR. GARDNER: Your Honor, the prosecuting attorney did furnish me with that transcribed copy of the statement taken from Shirley and the only reference I can find in there to any conversation she had with Michael, he said on the phone, “I brought your babies home to you.” That is the only statement.
PROSECUTOR: I submit, Your Honor, we have fully complied with the rules of discovery, if there’s any grounds for objection.
THE COURT: Objection will be overruled.
MR. GARDNER: Note our exception.
The examination of Ms. Duncan regarding the telephone conversation continued as follows:
PROSECUTOR: Now, what did he say? You know, he was asking you for information about why Cindy had left him or come back to Harrison?
MS. DUNCAN: He did.
PROSECUTOR: Now, in addition to that, did he tell you anything about Cindy or about their relationship?
MS. DUNCAN: He gave me a message to give to Cindy.
PROSECUTOR: What was the message?
MS. DUNCAN: He said, well, she’s in Arkansas, Harrison, Arkansas, and I’m in Texas and we’re still married. I intend to conduct myself as a married man and I expect her to conduct herself as if she’s married.
PROSECUTOR: How did he say that?
MS. DUNCAN: Emphatic; it was to the point.
The next witness called to testify for the State was Steve Duncan, Cindy Bowden’s father. Defense counsel objected to Duncan’s testifying as to any statements made by Bowden to Duncan not furnished in discovery. The trial court denied this objection, essentially finding the State did not have a duty to disclose statements by an accused to private citizens. Mr. Duncan then testified that prior to the murders, Michael Bowden told him that he had an eight or nine millimeter automatic pistol with a left handed ejection. His testimony was also crucial inasmuch as nine millimeter shell casings were found at the scene of the crime.
Rule 17.1(a)(ii) provides as follows: “the prosecuting attorney shall disclose to defense counsel, upon timely request, . . . any written or recorded statements and the substance of any oral statements made by the defendant or a co-defendant.” The plain language of this Rule does not limit the discovery obligation of the State solely to statements made to the police or other authorities. To the contrary, it provides that upon timely request, the prosecution must disclose any written or recorded statement and the substance of any oral statement made by the defendant. Our cases are in accord. See Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988). Parker v. State, 292 Ark. 421, 432, 731 S.W.2d 756 (1987).
The State clearly breached its duty to provide statements made by Bowden to the Duncans. On remand we direct the State to strictly comply with all discovery obligations.
Reversed and remanded.
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DuNaway, J.
The validity of a stock-law election in Big Creek Township in Searcy County is presented for our determination. Suit was filed by appellee ftatchford and others, as citizens and owners of livestock in said township, against appellant Goggin and others, as Election Commissioners, and Lawrence Weaver, as County Clerk, to have quashed the certificates of the Election Commissioners and the County Clerk certifying the approval by the voters of Big Creek Township of the annexation of said township to an adjoining stock-law district previously formed. The Chancellor held the election void and the defendants have appealed.
On July 19,1948, a petition was filed in the office of the County Clerk of Searcy County signed by seventy-eight persons who represented themselves to be qualified electors of Big Creek Township. The number of signers exceeded seventy-five per cent of the total votes cast for Governor at the General Election in said township in November, 1946. The petition prayed that the County Court order an election on the question of restraining livestock in said township, the proposal to be voted on at the General Election in November, 1948. Petitioners- further asked that Big Creek Township be annexed to the adjoining stock-law district already in existence, if approved by the voters.
From the record it appears that the petition was never presented to the County Court and no order was made by the County Court placing the question on the ballot. However, at the time of making up the ballot for the General Election, the Election Commissioners checked the petition, found that it bore the required number of signatures of qualified electors, and placed the proposal on the ballot. Notice of the General Election was given as required by law; the Sheriff’s proclamation for the election included notice that the stock-law question would be on the ballot.
At the election 126 votes were cast on the stock-law issue, of which 86 were in favor of restraining livestock and 40 votes were opposed to the proposal. The County Clerk thereafter entered his certificate in the County Court record declaring the stoeklaw proposal adopted.
In appellees’ suit, filed February 19, 1949, it was alleged that the election was void because there was no order of the County Court authorizing submission of the question to the electors as required by law. Appellants’ answer admitted that there was no order of the County Court calling the election, but set forth the facts already stated in this opinion. Appellees filed a demurrer to the answer, which was sustained by the Chancellor on two grounds: (1) Section 10 of Act 156 of 1915 (Ark. Stats., 1947, § 78-1411) under authority of which the election was held, was repealed by implication by Act 368 of 1947; as a result of which there is now no authority for holding an election for the annexation of a single township to a stock-law district. (2) Failure of the County Court to make an order calling the election was a jurisdictional defect which rendered the election void, even assuming § 10 of Act 156' of 1915 still in effect.
The court accordingly held the election void and ordered that the certificates of the results thereof be quashed.
A brief review of the relevant legislative acts dealing with stocklaw districts will facilitate an understanding of. the questions we must decide.
Act 156 of 1915 -authorized formation of stock-law districts upon petition to the County Court of twenty-five per cent of the qualified electors of three or more townships in a body. The procedure to be followed and form of ballot were prescribed in the first three sections of the Act. Sections 4, 5, 6 and 7 had to do with the taking up of estrays where stock-law districts had been created, and the assessment of damages done by such estrays, together with allowable costs to be taxed. Sections 8 and 9 related to the fencing of railroad rights-of-way and driving livestock along public highways. Section 10 provided that where three or more townships had been formed into a stock-law district as provided in the Act, any township or group of townships that would be “a contiguous whole to the unit thus formed, may be attached to and become a part of said unit, in the same way and manner as herein provided for in the first instance . . . ”
A number of counties were specifically exempted from the provisions of the Act. Searcy County, however, was not one of these. This Act, as amended by Act 257 of 1919, appeared as § 335 et seq. of Pope’s Digest. Since certain named counties are exempted from the Act, it is a local act under Amendment 14 to the Arkansas Constitution, adopted in 1926. For discussion of “Special and Local Acts in Arkansas” see 3 Ark. Law Review, p. 113.
By Act 368 of 1947, the General Assembly specifically repealed §§ 335, 336, 337, 338 and 346 of Pope’s Digest. The provisions of Act 368 of 1947, which was a general law for the formation of stock-law districts in the entire state, appear in Ark. Stats. (1947) § 78-1401 et seq. Those sections of Pope’s Digest (§§ 5, 6, 7, 8, 9, 10 of Act 156 of 1915) not specifically repealed by the 1947 Act are included in Ark. Stats. (1947) §§ 78-1405 through 78-1411.
The procedure for the initial formation of a stock-law district composed of three or more townships, is practically indentical under the 1947 act with that under the repealed sections of Act 156 of 1915. Unless § 10 of the latter act (Ark. Stats., 194?, § 78-1411) remains unrepealed, there is no provision in our statutes for the addition of a single township to an existing stock-law district.
While it is true that local or special acts may not under Amendment 14 be amended, Benton v. Thompson, 187 Ark. 208, 58 S. W. 2d 924, repeal of only part of a local or special act is permissible. Gregory v. Cockrell, 179 Ark. 719, 18 S. W. 2d 362; Johnson v. Simpson, 185 Ark. 1074, 51 S. W. 2d 233.
Eepeal of statutes by implication is not favored, Faver v. Golden, Judge, 216 Ark. 792, 227 S. W. 2d 453. It is only where a later general act covers the whole subject matter included in a prior special act, so that it is evident that the Legislature intended to make the new act contain all the law on the subject, that the earlier act will be held to have been repealed by implication. King v. McDowell, 107 Ark. 381, 155 S. W. 501. Here the Legislature specifically enumerated the sections of Act 156 of 1915 which were repealed by Act 368 of 1947. The other sections of the 1915 Act are carried forward by the digesters in Ark. Stats, as still being in effect. Since § 10 of Act 156 of 1915 is the only provision in the law authorizing the annexation of single townships to stock-law districts; and since this subject matter was not covered by the 1947 Act, we have concluded that the Legislature did not intend its repeal.
It is argued that repeal of the first three sections of the 1915 Act, which prescribed the procedure to be followed in creating stock-law districts, left § 10 of that Act without any mechanics for achieving the annexation of a single township. As already pointed out, the procedure under Act 156 of 1915 and that provided for in Act 368 of 1947 is without substantial difference. The Legislature has simply substituted the procedure provided for in the later general act as that to be followed in filing petitions for the annexation of a single township nnder § 10 of the earlier act. Since this section is part of a special or local act, such annexations can only he effected in counties covered by Act 156 of 1915; and annexations of single townships can only be made to districts already in existence when Act 368 of 1947 was passed. See Wright v. Raymer, 165 Ark. 146, 263 S. W. 385.
We also hold that failure of the County Court to enter an. order calling the election did not invalidate the election which was in fact held. In upholding a stock-law election where the notice thereof was not given in accordance with the statutory requirements, we said in Whitaker v. Mitchell, 179 Ark. 993, 18 S. W. 2d 1026, at p. 997:
“In the case of Wallace v. Kansas City Sou. Ry. Co., 169 Ark. 905, 279 S. W. 1, we quoted from the case of Hogms v. Bullock, 92 Ark. 67, 121 S. W. 1064, 19 Ann. Cas. 822, the following quotation from the Supreme Court of Indiana:
“ ‘All provisions of the election law are mandatory if enforcement is soug’ht before election in a direct proceeding for that purpose, but after election all should be held directory only, in support of the result, unless of a character to effect an obstruction to the free and intelligent casting of the vote, or to the ascertainment of the result, or unless the provisions affect an essential element of the election, or unless it is expressly declared by the statute that the particular act is essential to the validity of an election, or that its omission shall render it void. Jones v. State, 153 Ind. 440, 55 N. E. 229.’
“So here the statutory provisions were mandatory in the sense that compliance with them could have'been coerced before the election, but, as the notice which was given, while not complying with the statute, appears to have been sufficient to apprise the great body of the electors of the fact that the election would be held, and they have participated therein, we are constrained to affirm the action of the chancellor in upholding the election.”
In the case at bar, it is admitted by appellees ’ demurrer that petitions signed by the required number of elec tors were filed with the county clerk; that the county judge knew of the petition but arbitrarily or through negligence failed to act upon it; that notice of the election was given; that a greater total of votes was cast on the stock-law question than was cast for most candidates on'the ballot; that the proposed annexation was approved by a vote of more than two to one.
It is urged that an order by the County Court is jurisdictional under our decisions in Fesler v. Eubanks, 143 Ark. 465, 220 S. W. 457 and State v. Phillips, 176 Ark. 1141, 5 S. W. 2d 362. See, also, Wright v. Baxter, 216 Ark. 880, 227 S. W. 2d 967. In those cases it was held that where an order of the County Court calling a stock-law election showed on its face that the required number of electors had not signed the petition, there was such a jurisdictional defect as would void the election. It was the filing of a petition bearing the requisite number of signatures that we held to be jurisdictional. In the case at bar it is admitted that this was done. After the jurisdictional requirement of filing the proper petitions is met, the ordering of the election by the County Court is merely a ministerial act. Patterson v. Adcock, 157 Ark. 186, 248 S. W. 904.
The reasoning in the Whitaker case, supra is decisive in the instant case.
The decree is reversed and the cause dismissed. | [
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Lyle Brown, Justice.
Essentially this is a land title dispute between two neighbors. The Shepherds instituted a suit for damages against the Sparkses alleging trespass. Later the case developed into a contest over title and the Shepherds prevailed. Appellants advance five points for reversal.
Between the two tracts of land occupied by the parties is an old fence running north and south. To the east of the fence and on what we shall call the Shepherds side is a private road running parallel with the fence and on out to a county road, to the north. The Sparkses proceeded to locate a mobile home on their side of the fence and facing the private road. In order to obtain ingress and egress to the mobile home the Sparkses proceeded to cut the fence and clear underbrush on the Shepherds side of the fence, the object being to connect a passageway with the private road. Those actions by the Sparkses resulted in the filing by the Shepherds of cause numbered 7170 in the Clark Chancery Court. They sought to enjoin the Sparkses from trespass and prayed for damages. A separate answer on behalf of William M. Sparks, incompetent, contained a counter-claim, alleged that the two acres claimed by the Shepherds contained two void deeds in the chain of title and that in fact the record title was vested in the Sparkses.
The title of both parties was deraigned from a common source. In 1953 O. H. Haltom executed a deed to one Stanford for two acres out of his forty acre tract by metes and bounds description. The description was defective in that it did not close. In 1956 Haltom deeded four acres to the Sparkses out of the same forty. That deed described six acres by metes and bounds but excepted therefrom the two acres previously deeded to Stanford and “recorded in Book 220, page 460 of the deed records of Clark County.” Then in 1962 Stanford deeded to Shepherd and wife the two acres previously mentioned and under the same void description as was in the Haltom to Stanford deed. On the basis of the defective description in the Shepherd title, the Sparkses claimed the Shepherds took nothing by their conveyance and asked for ejectment in their counterclaim. That was on the theory that the record title was in the Sparkses. The counterclaim also sought damages.
The Shepherds’ reply conceded that two calls had been omitted from the deeds as heretofore described. They then purported to make the Haltom and Stanford heirs parties to the suit. The Shepherds additionally asked for reformation.
The Sparkses demurred to the reply and filed motion for summary judgment on the issue of liability. At a hearing on January 10, 1972, the chancellor informally stated his intention to dismiss the complaint as to the Sparkses on the theory that possession by the Shepherds had not been pleaded. Thereupon the Shepherds requested and were granted a nonsuit. That left the counterclaim as the only issue before the court.
Shortly after the dismissal without prejudice the Shepherds filed a new cause of action against the same parties, cause number 7240. An answer containing counterclaim and alternate affirmative defenses was timely filed. After the statutory period for filing a reply to the counterclaim and affirmative defenses had expired the Sparkses filed a motion for default judgment. The chancellor held that the pleading filed by the Sparkses was more in the nature of an answer than of a counterclaim and did not require a response by the Shepherds, and the motion for summary judgment was denied. Motions in both cases for summary judgment filed by and for the Sparkses were denied and die causes consolidated for trial.
The chancellor ordered the void deeds reformed. As to costs in the case the parties were ordered to pay their respective witnesses, the costs of a survey made by the county surveyor were divided and the balance of the costs was adjudged against the Sparkses.
Other pertinent facts will be related as the points for reversal are enumerated and discussed.
Point I. The court erred in granting the Shepherds’ motion for nonsuit and in dismissing the Shepherds’ complaint in 7170 without prejudice when the Sparkses had a counterclaim pending. Only two Arkansas cases on the subject come to our attention. In Pickett v. Ferguson, 45 Ark. 177 (1885), this court sustained the trial court in refusing to dismiss a complaint without prejudice after a cross-bill had been filed. The other case is Rowell v. Rowell, 184 Ark. 643, 43 S.W. 2d 243 (1931). Again, the trial court refused to dismiss a cqmplaint where a cross-complaint had been filed. This court said: “It was within the sound discretion of the chancellor at this stage of the proceedings to grant or refuse the motion, and his action will not be reviewed, unless that discretion was abused”. We find no abuse of discretion in the case at bar.
Point II. The court erred in denying the Sparkses’ motion for a default judgment in 7240. The Shepherds failed to file within the statutory period a reply to the Sparkses’ counterclaim in 7240. The Shepherds responded out of time and their attorney stated that he was not aware that the counter-claim had been filed or that he had received a copy. The trial court denied the Sparkses’ motion for default judgment. We sustain the action of the trial court.
Ark. Stat. Ann. § 29-401 (Repl. 1962) providing for entry of default judgment against one from whom affirmative relief is sought and who has failed to file a responsive pleading, specifically recognizes that a default judgment entered should be set aside for unavoidable casualty, excusable neglect or other just cause. It is only logical that if a court can set aside a default judgment for those reasons, it will not abuse its discretion if it refuses to enter a judgment for any of the same reasons. Easley v. Inglis, 233 Ark. 589, 346 S.W. 2d 206 (1961); Fitzwater v. Harris, 231 Ark. 173, 328 S.W. 2d 501 (19959).
Although we are not persuaded that there was a clear showing of unavoidable casualty we do find justification for a finding of excusable neglect or “other just cause” in the circumstances prevailing because the very issues raised by appellants were already an issue in the first case (7170) by virtue of the pleadings then extant, i.e., the counterclaim and reply thereto. This result seems to be indicated by our decisions in the cases above cited and in Barkis v. Bell, 238 Ark. 683, 384 S.W. 2d 269 (1964). In all of these cases the attorneys for the party in default had some reason to feel secure in the belief that pleading was either unnecessary or that pleading requirements had been met. The major consideration seems to have been that in each case there was every indication that the issues would be contested. That is also the case here, so we find no abuse of discretion in the court’s denial of a default judgment.
Point III. The court erred in denying the Sparkses’ motions for summary judgment in both cases. Under this point the argument is advanced that by reason of the indefinite description in the Shepherds’ chain of title, nothing was conveyed and therefore the Shepherds are not entitled to reformation. The Sparkses overlook the fact that adverse possession was pleaded in 7240; and in 7170 the Shepherds controverted the counterclaim filed by the Sparkses.
Point IV. The court erred in reforming the two void deeds in the Shepherds’ chain of title to the two acre tract. The point is based on the fact that all of the heirs in the Shepherds’ chain of title were not before the court. McClelland v. McClelland, 219 Ark. 255, 241 S.W. 2d 264 (1951). The point is rendered moot by our holding, later to be discussed, that the Shepherds are entitled to recover under adverse possession.
Point V. The court erred in the division of the costs. It was held that the costs of the survey by the county surveyor would be divided equally between the parties; that each party would pay its own witnesses; and that the other costs would be imposed on the Sparkses. This was an equitable division. The court said there was an agreement made early in the proceedings that the survey would be made and the cost divided equally.
We now come to the plea of adverse possession made by the Shepherds. The plea is specifically made in cause number 7240; proof was introduced thereon and it is argued here. Thomas Shepherd testified he obtained his deed in 1962; that in 1963 he cleared the land and has been farming it since then, all but a small parcel which is wet, but which he kept “bushhogged”; that he was in possession of the disputed acreage up to the fences on the south, west, and east sides, and to the county road on the north side; that he built a new road all the way across the two acres on the east side near the quarter section line; and that he regularly paid taxes on the property. He said Mr. and Mrs. Sparks observed him clearing the land in 1963. Mrs. Sparks said they began claiming the two acres when attorney Cook checked the deeds. That had to be about the time this litigation was instigated. She also conceded that Mr. Haltom “told us he had sold some of it to a Mr. Stanford”. In addition, the proof show ed the Stanford family exercised control over the land from 1953 until 1962, using it as a means of access from their home on the south to the county road on the north. Mr. Sparks was declared incompetent on May 28, 1963.
It is argued that adverse possession cannot run against one who is non compos mentis. This general rule is stated in 2 C.J.S. Adverse Possession § 195: “In the absence of statutory provision to the contrary, the accrual of disabilities to the true owner of the land after the commencement of adverse possession will not fatally interrupt the continuity of adverse possession so begun.” Our statute on adverse possession of land makes no provision to the contrary; in fact, the reasonable interpretation of the statute coincides with the C.J.S. statement; Ark. Stat. Ann. § 37-101 (Repl. 1962). Also see Denton v. Brownlee, 24 Ark. 556 (1867); Bozeman v. Browning, 31 Ark. 364 (1876); Freer v. Less, 159 Ark. 509, 252 S.W. 354 (1923).
Affirmed.
Harris, C.J., not participating. | [
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Tom Glaze, Justice.
This tort of conversion case was commenced by Dr. Jerry Morgan after his 1984 Porsche had been repossessed by Mercedes-Benz Credit Corporation (MBCC). Morgan purchased the Porsche from Riverside Motors and afterwards, Riverside assigned the purchase installment contract to MBCC. Under the contract, Morgan was to make a payment of $253.37 on the first day of each month for forty-eight months commencing March 1,1990. Morgan was indisputably late in his payments, and on March 22,1991, MBCC decided to exercise its right under statutory law and the parties’ contract to self-help repossession. MBCC peacefully and without incident gained possession of the Porsche on April 8, 1991. Following repossession, Dr. Morgan brought his account current. MBCC then offered to return the Porsche to Morgan, but he refused, choosing instead to file this conversion action against MBCC.
Prior to trial, MBCC moved for summary judgment which the trial court denied. The parties tried the case to a jury which returned a verdict for Dr. Morgan in the sum of $11,900.00. MBCC filed motions for directed verdict and for judgment notwithstanding the verdict, all of which were denied. The trial court also awarded attorney’s fees to Morgan. MBCC brings this appeal arguing the trial court erred in denying its motions for directed verdict and judgment notwithstanding the verdict and in awarding Morgan attorney’s fees.
Morgan proceeded below on two theories, namely (1) he was not in default when MBCC decided to repossess Morgan’s car, and alternatively (2) if Morgan was in default, MBCC had established a course of dealing by accepting late payments, so MBCC was required to put Morgan on notice that it would no longer allow late payments and would require strict compliance with the parties’ contract. Both of these theories were presented to the jury, and if Morgan is correct on either argument, we must affirm.
As to Morgan’s first point, our review of the record shows he was clearly in default at the time MBCC repossessed Morgan’s car. Morgan makes much of the argument that MBCC had miscalculated the receipt of his late February 1 and March 1, 1991 payments. He showed MBCC had misapplied his February 1 payment to the wrong account and mistakenly delayed in crediting this payment to Morgan’s correct account until April 15, 1991. Morgan argued MBCC had actually accepted his late February 1 payment well in advance of its declaring Morgan in default. Morgan also claimed that MBCC had accepted his late March 1 payment on April 1,1991. In both cases, Morgan asserts his account was current prior to MBCC’s repossession of Morgan’s car on April 8, 1991.
Although the record appears to support Morgan’s argument as to his February and March payments, the evidence also reflects he still was late on his payment due on April 1,1991, which was not received by MBCC until on or about April 11,1991 — several days after MBCC repossessed Morgan’s car. In sum, we conclude MBCC is correct in its argument that Morgan was, indeed, in default when it regained possession of Morgan’s car. That being so, MBCC argues it was not liable for conversion.
Accordingly, MBCC relies on the case of Ford Motor Credit Co. v. Herring, 267 Ark. 701, 589 S.W.2d 584 (1979), where the Herrings purchased two pickup trucks which were financed by Ford Motor Credit Company and the purchase contract allowed repossession of the trucks if the Herrings defaulted in their payments. That is what occurred. The Herrings subsequently sued Ford Motor Credit Company for conversion of the trucks and a jury awarded the Herrings a verdict. This court reversed the jury verdict and reiterated the right of the seller to repossess the vehicle upon default if it could be done without a breach of the peace. See also Ark. Code Ann. § 4-9-503 (1987). The court held that, because the Herrings were in default in their payments and their trucks had been peacefully repossessed, the Herrings had failed to present sufficient evidence to establish a fact question that the repossession of the trucks constituted a conversion.
Here, Morgan’s argument that he was not delinquent in his account at the time his car was repossessed is not supported by the evidence, and if that were the only issue, we would reverse, holding MBCC was within its rights as set out in Herring.
The Herring case, however, is not controlling here because it does not address Morgan’s second theory or argument. In other words, while the Herring case correctly upheld a seller’s or secured creditor’s right to repossess collateral when a debtor is in default, the Herring court was not confronted with the argument Morgan makes here — where the secured creditor (MBCC) routinely accepts a debtor’s (Dr. Morgan’s) delinquent payments, does the creditor waive strict compliance with the parties’ contractual payment and enforcement provisions, at least until the creditor notifies the debtor that strict compliance will be expected henceforth?
Morgan’s theory argued below and on appeal is well-grounded in legal authority. In pre-code cases, this court adhered to the principle that acceptance of late payments waives strict compliance with contract terms specifying time of payments. See Commercial Credit Co. v. Ragland, 189 Ark. 349, 72 S.W.2d 226 (1934); General Motors Acceptance v. Hicks, 189 Ark. 62, 70 S.W.2d 509 (1934); see also Ford Motor Credit Co. v. Waters, 273 So.2d 96 (Fla. Dist. Ct. App. 1973), (where seller of automobile had consistently accepted late payments from the buyer, who had made more than half of the thirty-six monthly payments when the vehicle was repossessed at time buyer was two months behind, the court held the seller’s conduct led buyer to believe late payments would be accepted and therefore buyer had a right to be notified, prior to repossession, of any modification of such conduct, and in absence of such notice, buyer was entitled to recover for wrongful repossession.)
Professor Steve H. Nickles thoroughly discussed in his article, Rethinking Some U.C.C. Article 9 Problems, the foregoing principle concerning the effect of a creditor’s acceptance of late payments as follows:
A similar case involves a secured party who has regularly accepted late payments but eventually decides to repossess when the debtor fails to make the next payment on time. A clause in the security agreement usually gives the creditor the right to declare the contract in default if any payment is delinquent. When sued by the debtor, the secured party argues that this contract language entitled him to repossess despite the established pattern of accepting late payments and foregoing repossession. The courts typically hold that “an established course of dealing under which the debtor . . . makes continual late payments and the secured party . . . accepts them does not result in a waiver of the secured party’s right to rely upon such a clause in the agreement authorizing him to declare a default and repossess the chattel.” But “a secured party who has not insisted upon strict compliance in the past . . . must, before he may validly rely upon such a clause to declare a default and effect repossession, give notice to the debtor. . . that strict compliance with the terms of the contract will be demanded henceforth if repossession is to be avoided. By his course of dealing the secured party has, in effect, waived the right to repossession based on defaults in making timely payments. The secured party must then reinstate the right by giving the debtor notice that strict compliance with the contract is now expected before a late payment can justify repossession. In many of these cases such notice has not been given, and the secured party is found liable for wrongful repossession.
34 Ark. Law Rev. 1, 137 (1980-81) (emphasis added).
In the present case, Dr. Morgan made only one timely payment of the fourteen monthly payments required prior to MBCC having repossessed Morgan’s automobile. The thirteen late payments ranged from a few days to more than thirty days delinquent from the due date required under the parties’ agreement. MBCC’s personnel had contacted Morgan concerning his delinquent payments, but no one at MBCC ever informed Morgan that MBCC intended to commence strict enforcement of its rights under their contract. The record shows that shortly before it repossessed Morgan’s Porsche on April 8,1991, MBCC had again accepted another late payment (March) on April 1, 1991, and it also accepted Morgan’s delinquent April payment on April 11,1991. In fact, MBCC even tendered the car’s return to Morgan when Morgan became current on his account. Clearly, a jury, under the above authority, could have found that (1) MBCC, by its course of dealing, had waived its right to reposses sion based on its having repeatedly accepted late payments, and (2) in order to reinstate its right under the parties’ contract, MBCC was required to give Morgan notice that MBCC expected strict compliance in future dealings. If MBCC failed to give such notice in these circumstances, it would then not have the right to declare a default and repossess its collateral.
At this point, we note that the secured party’s liability for wrongful repossession is usually based on the common law rule of conversion. See Nickles, 34 Ark. L. Rev. at p. 139. The Hicks case previously cited was such a repossession case where this court upheld a buyer-debtor’s claim that the creditor committed conversion when the creditor wrongly took possession of her refrigerator. Conversion is the exercise of dominion over the property in violation of the rights of the owner or person entitled to possession. Herring, 267 Ark. 701, 589 S.W.2d 584. As discussed above, MBCC failed to reinstate its right under the parties’ contract to declare default and to repossess its collateral for late payments. As a consequence, its repossession of and exercise of dominion over Morgan’s automobile in these circumstances sufficiently supported the jury’s finding of conversion.
Before leaving this point, we acknowledge MBCC’s reliance on Westlund v. Nelson, 1 Ark. App. 268, 647 S.W.2d 488 (1983). MBCC argues that Westlund stands for the proposition that acceptance of a late payment precludes acceleration because of the lateness of that payment, but is not a waiver of the right to accelerate when default occurs in a subsequent installment. See Rawhide Farms v. Darby, 267 Ark. 776, 589 S.W.2d 210 (Ark. App. 1979). Thus, MBCC concludes that, while it may have accepted thirteen late payments from Morgan, Morgan was still delinquent in his last April 1 payment, and under the Westlund rationale, MBCC could declare default and enforce its rights under the parties’ contract by repossessing Morgan’s car.
First, we note that MBCC never argued Westlund below either in support of its directed verdicts or its motion for judgment notwithstanding the verdict. MBCC relied simply on the fact that Morgan was in default, and under the holding in Herring, it had the right to repossess Morgan’s car. On the other hand, Morgan, as discussed above, argued, when opposing MBCC’s directed verdict motions and during his closing argument, that by ac cepting late payments, MBCC had established a course of dealing which required MBCC to notify Morgan that it expected future payment to comply with the parties’ contract. Morgan, without objection, argued this theory to the jury and emphasized that MBCC never gave Morgan such notice and therefore it had no right to repossess Morgan’s car when it did.
In sum, MBCC simply failed to object or attack the legal soundness of Morgan’s course of dealing argument below, nor did it argue that the principle in Westlund should control over Morgan’s theory. Neither the trial court nor the jury was apprised of the legal argument MBCC now advances for the first time on appeal. Because substantial evidence was presented that Morgan never received notice from MBCC that it would henceforth require prompt payments under the parties’ contract, the jury could have readily determined MBCC wrongfully repossessed Morgan’s vehicle when it did. This is especially true since MBCC continued its pattern of accepting late payments from Morgan by accepting his late April 1 payment on April 11,1991, and offering to return Morgan his car. We note further that it was MBCC’s burden to demonstrate error and having failed to do so, we must affirm. Jenkins v. Goldsby, 307 Ark. 558, 822 S.W.2d 843 (1992).
In its second point for reversal, MBCC contends the trial court erred in granting $2,500 in attorney’s fees to Dr. Morgan pursuant to Ark. Code Ann. § 16-22-308 (1987). MBCC is right. Section 16-22-308 provides for a reasonable attorney’s fee in certain civil actions, including breach of contract relating to the purchase or sale of goods, wares or merchandise. Tort actions are not included. See Stein v. Lukas, 308 Ark. 74, 823 S.W.2d 832 (1992). Here, Morgan’s claim was based on the tort of conversion, not contract. Therefore, his request for attorney’s fees should have been denied.
APRIL 5, 1993
Robert R. Ross, for appellant.
Robert T. James, for appellee.
For the reasons above, we affirm the jury verdict entered in Morgan’s behalf, but reverse and remand the trial court’s award of attorney’s fees.
Brown, J., not participating.
No actual instruction was given on this theory even though Morgan argued this theory both to the trial court and the jury. Nor was an instruction tendered involving waiver or the principle in the Westlund case.
We further acknowledge the existence of a “non-waiver/no oral modification” cause in the Retail Installment Contract. However, MBCC failed to present any argument as to that clause’s effect upon the parties’ course of dealing. Mindful of a split of authority, See Tillquist v. Ford Motor Credit Co. 714 F.Supp. 607 (D.Conn.1989); Barkley Clark, The Law of Secured Transactions Under the Uniform Commercial Code, ¶ 4.01 [3] (2d.ed. 1988); Ronald Anderson, Uniform Commercial Code, § 9-503:14 (3d.ed. 1985 & Supp. 1991), we refrain from deciding this issue until it is properly raised and argued in an appropriate case. | [
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George Rose Smith, Justice.
On December 30, 1964, the appellee, Mary Griffith, had a son, Tony Jerome McFadden, born out of wedlock. In this bastardy proceeding, filed in 1980, the trial court found that the appellant, Eli McFadden, is the father of the child. The judgment also awarded child support for the preceding three years. For reversal it is primarily argued that the judgment is clearly against the preponderance of the evidence. A subordinate theory, that any award of support money is barred by limitations, was rejected in Dozier v. Veasley, 272 Ark. 210, 613 S.W.2d 93 (1981), and need not be discussed further.
The mother testified that she had sexual relations with Eli McFadden and with no one else from 1962 until 1966. She also testified that McFadden recognized the child as his, visited the child at the hospital, bought clothing, a high chair, milk, and other things for the baby, and gave the mother $15 or $20 a week. In 1966 McFadden married and went to California, but when he returned 14 years later he brought his own daughter to see Tony and also bought clothing for Tony. The appellee’s testimony was corroborated to some extent by her mother and by Tony himself. McFadden admitted having had sexual relations with the appellee for a year and a half beginning in 1962, but he said they had a falling out for a year (during which Tony was conceived), after which their relationship was resumed. He denied having done anything at all for the child.
In his argument for reversal the appellant cites cases such as Lewis v. Petty, 272 Ark. 250, 613 S.W.2d 585 (1981), where we held that one who claims to be the illegitimate child of a deceased person, and on that basis to share in the decedent’s estate, must prove his claim by clear and convincing evidence. That standard of proof is required, however, because in such cases the death of the man charged with having fathered the claimant has deprived the estate of its most valuable witness. Indeed, as in Christman v. Jones, 254 Ark. 936, 497 S.W.2d 14 (1973), our statutes have often required that the claimant in such a situation prove speci fied corroborative facts, one being that the decedent recognized the claimant as his child.
By contrast, our cases do not indicate that in a bastardy proceeding like this one, brought against a living putative father, the mother’s burden of proof is anything more than a mere preponderance of the evidence. That rule naturally follows from the fact that a bastardy proceeding, even when brought in the name of the state, is a civil proceeding, not a criminal one. Eveland, v. State, for Use of Fossett, 189 Ark. 517, 74 S.W.2d 221 (1934). In the case at bar the trial court’s judgment, far from being clearly erroneous, is in our oinion supported by the weight of the evidence.
Affirmed. | [
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Humphreys, J.
Appellees brought suit against appellants in the Circuit Court, First Division, Jonesboro District, to reeoyer an alleged unpaid balance of $1,948.34, upon an oral contract to clear certain right-of-way and grub a portion thereof for a 'State road between Bono in Craighead County, and Sedgwick in Lawrence County. A summons was issued upon the complaint and served by a deputy sheriff of said county who made the following written returns thereon:
‘ ‘ State of Arkansas, County of Craighead—ss.
“On the 30th day of October, 1929,1 have duly served the within writ by delivering a copy and stating the substance thereof to the .within named Alex Ramey and Forcum & James, a corporation, by delivering a copy of summons to Alex Ramey, agent of said corporation, as I am hereby commanded.
“W. Y. Nash, Sheriff,
“By W. F. Lane, D. S.”
“State of Arkansas, County of Craighead—ss.
‘ ‘ On the 30tli day of October, 1929,1 have duly served the within writ by delivering a copy and stating the substance thereof to the within-named 'Forcum-James Company, a foreign corporation organized under the laws of the State of Tennessee, by delivering a copy of said writ to Alex Ramey, agent of said corporation, in charge of the business of said corporation at Bono, Arkansas, and duly authorized to receive service of summons at said place. That said service was had at their place of business of the corporation, and he aeknowlledged said service 'for said corporation as I am hereby commanded to do.
“W. T. Nash, Sheriff,
“By W. F. Lane, D. S.”
Appellants appeared for the sole purpose of filing a motion to quash the summons on the ground that the service thereof did not meet, the requirements of § 1152 of Crawford & Moses’ Digest, relative to service on foreign corporations doing business in this State.
Appellees filed a response to the motion alleging that the service was sufficient.
Neither the motion nor the response were sworn to and no testimony was introduced upon the issue joined, return of the summons being the only evidence relating to the service of the summons. The motion was overruled by the court over appellant’s objection and exception, and the correctness of the ruling of the court is one of the questions for determination by this court.
Appellants then filed a joint and separate answer denying the material allegations of the complaint in which they reserve the issue of the sufficiency of the service.
The cause was submitted to a jury upon the pleadings, testimony and instructions of the court which resulted in a verdict and consequent judgment against appellants for $1,367.12, from which is this appeal.
The first contention made by appellants for a reversal of the judgment is the alleged insufficiency of the service. The return upon the summons reflects that it was served upon appellant, Forcum-James Company, a foreign corporation, by delivering a copy and stating the substance thereof, to Alex Ramey at its place of business at Bono, Arkansas, who was duly authorized to receive service of said summons at said place. In serving the summons every requirement of the statute was complied with, and the service thereof was sufficient. It is not necessary for a foreign corporation to own or rent a building in which it conducts its business in order that legal service may be obtained upon it by delivering a copy of the summons to its agent in charge of its business. The requirement of the statute is that summons must be served upon its agent at its place of business, and that means on the agent in charge of its business at any place, irrespective of kind or character, at which it conducts and operates its business. Arkansas Power & Light Co. v. Hoover, post p. 1065, and the cases cited therein.
The next contention made by appellants for a reversal of the judgment is that the court erred in admitting in evidence Exhibit D to the testimony of L. C. Baker, purporting to be a statement of account between the parties. We know of no reason why a party may not make up a statement in writing of debits and credits covering any transaction made the basis of his suit, testify to the correctness or each item and introduce the statement in evidence. It might be objected that the original book entries of the debits and credits were the primary and best evidence if books covering all or any of the items were kept, but this objection was not specifically made to the introduction of the statement.
Appellants’ next and last contention for a reversal of the judgment is that the verdict is not supported by the evidence.
Appellees testified that they entered into a contract with appellants to clear certain right-of-way between given points and to grub a certain portion thereof, at fixed prices per acre for clearing and grubbing, and were to remove the refuse from the right-of-way; that they cleared 82.75 acres for which they were to receive $25 per acre and grubbed 57.75 acres for which they were to receive $75 per acre; that they complied with the contract in every particular until prevented from completing a small part of the work by appellants who employed their dynamiter and other employees. ' They testified to the correctness of each item of debit and credit in their statement and to the balance due them under the terms of the contract.
Witnesses for appellants testified that under the contract with appellees they were required, not only to remove the refuse from the right-of-way, hut were to bum same if required to do so by the highway engineer, and that appellants were required, at great expense, to clear up and burn the refuse left by the appellees near the right-of-way. Also that appellees cleared only 25.87 acres for which they were entitled to $25 per acre and only grubbed 44.63 acres, for which they were entitled to $75 per acre, and that they paid appellees all that they owed them for work.
It will be seen that the evidence was conflicting as to the terms of the contract, the number of acres cleared, the number of acres grubbed, etc. In view of the conflict in the testimony upon all material issues arid that appellees’ version of the contract and the performance thereof is supported by substantial evidence, the verdict and judgment cannot be reversed on appeal.
No error appearing, the judgment is affirmed.
Hart, C. J., and Smith, J., dissent. | [
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Steele Hays, Justice.
This personal injury case resulted in a verdict for the defendants, Safeway Trails, Inc. and Midwest Bus Lines, Inc. Appellant Robert Sims, Jr. (plaintiff below) maintains that the trial court erred in ruling that the testimony of his expert witness was inadmissible. Finding no error, we affirm the judgment.
At about 3:00 a.m. on September 9,1984, Sims collided with a bus owned and operated by the appellees. The bus had overturned on Interstate 1-40 near Protho Junction, in Pulaski County, Arkansas. Headed east, the bus was in the inside lane when a vehicle merged onto the interstate from an access ramp entering from the left of eastbound traffic. To admit the merging vehicle, the bus moved to its right into the outside lane. The entering vehicle, rather than occupying the inside lane, continued onto the outside lane just ahead of the bus, which was rapidly overtaking the vehicle. Unable to use the shoulder because of an abandoned van, the bus attempted to reoccupy the inside lane, and in so doing lost control on the rain slick pavement, “fishtailed,” swerved onto the median and eventually turned on its side, partially blocking the westbound portion of the interstate. Appellant, driving west, collided with the overturned bus and sustained the injuries complained of.
Before trial the appellees moved in limine to exclude the testimony of Dr. Henry Hicks, an expert retained by appellant to investigate the collision. Dr. Hicks’s proposed testimony was examined at some length in chambers prior to trial. The court ruled some of the testimony inadmissible, and reserved judgment on the balance until the trial evolved. Dr. Hicks was permitted to listen to the proof and at a later point additional testimony by Dr. Hicks was proffered in chambers. After hearing the proffer and arguments pro and con by counsel, the trial judge concluded that the testimony was too speculative and that the factual issues were not beyond the general comprehension of the jury. Having examined the proffered testimony in detail, we believe the trial court was correct.
Dr. Hicks has been associated with the University of Arkansas for some twenty-five years and is currently professor of mechanical engineering. His qualifications to offer an expert opinion in appropriate areas are not challenged. Rather, the heart of the issue is whether the factual circumstances of the case require expert testimony and whether his opinions were conjectural.
Appellant does not take issue with the rule that the admissibility of expert testimony rests largely on the broad discretion of the trial court. Dildine v. Clark Equipment Co., 282 Ark. 130, 666 S.W.2d 692 (1984); Firestone v. Little, 276 Ark. 511, 639 S.W.2d 726 (1982). Thus, on appeal the appellant has the burdensome task of demonstrating that the trial court has abused its discretion. Arkansas Land and Cattle Co. v. Anderson-Tully Co., 248 Ark. 495, 452 S.W.2d 632 (1970).
Appellant maintains that Dr. Hicks should not have been denied the opportunity to testify, first, concerning the condition of the bus’s brakes and, secondly, to express his opinion as to how the bus driver erred in responding to a critical situation.
Dr. Hicks proposed to testify that at his direction a former graduate student, Mr. Yorgas Papacostas, who had considerable experience as an automotive mechanic and who held a master’s degree in mechanical engineering, went to Jackson, Mississippi, to examine the bus involved in this collision. The. essence of his subsequent oral report to Dr. Hicks was that the brakes on the bus were faulty. Dr. Hicks, though never having seen the bus nor any of its parts, proposed to testify concerning the brakes as reported to him by Mr. Papacostas. The trial court correctly excluded the testimony.
Appellant cites us to A.R.E. Rule 703:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field and forming opinions or inferences upon the subject, the facts or data need not be admissible into evidence.
In ruling the testimony inadmissible the trial court referred to Dr. Hicks’s proposed testimony as being merely a conduit for hearsay. Within the context of the case that decision was correct. Clearly, for Dr. Hicks to simply reiterate what his investigator told him concerning the brakes would be hearsay in its purest form. That, however, is not dispositive of the issue, because the law recognizes that an expert may rely on facts or data not admissible in evidence, if such facts are of a type reasonably relied upon by experts in a particular field in forming opinions upon the subject. A.R.E. Rule 703. Whether the data collected by Mr. Papacostas was of the type contemplated by Rule 703 is doubtful at best, but that need not concern us, because it is clear the data was not relevant to any opinion expressed by Dr. Hicks in explaining how the mishap occurred.
Rule 703 is obviously not intended to give an expert witness license to merely repeat hearsay for the sake of bringing such information before the fact finder. Rather, it is to enable the expert to make certain assumptions for the purpose of arriving at an opinion within the witness’s area of expertise. Dr. Hicks did not purport to have an opinion as to how the collision occurred which was even remotely related to the condition of the bus’s brakes. Indeed his testimony concerning the brakes coincided with the proof of the appellee. Referring to the bus driver’s testimony that he lightly applied his brakes on turning back to the inside lane, Dr. Hicks said, “Now we have a desperate situation and in my estimation, the driver did the right thing, he applied his brakes to some extent.” (R. p. 285). In short, under these circumstances the condition of the brakes had no relevance probative of the cause of the collision and the trial court properly excluded it.
Turning to the remainder of Dr. Hicks’s proffered testimony, we experience the same problem as the trial court in finding the kernel and condensing the substance of his opinion. Dr. Hicks either failed to develop, or failed to articulate, an opinion as to the cause of the collision which can be extracted from a number of loosely knit theories of how the driver might have reacted differently in the situation. He was of the opinion that if the bus driver had turned his wheels to the left rather than to the right just before turning over, the bus would have remained upright. However, his explanation of the dynamics which led him to that view cannot be comprehended and the trial court’s conclusion that it was entirely too speculative must be upheld. One factual inaccuracy in Dr. Hicks’s theory was his assumption that the bus driver’s testimony was to the effect that the rear of the bus first veered to the right and then to the left but that the driver regained control of the bus before driving onto the median. The fact is the driver testified that when the rear swung back from the right it then swung left to the other extreme and he never regained control of the bus after it began to fishtail.
Suffice it to say, we have reviewed the in chambers proceedings carefully and find ourselves wholly in agreement with the trial judge, who at one point observed, “I haven’t heard anything that requires an expert to come in and testify.” That observation, coming very near the end of the proffer, accommodates the rule that attempts to reconstruct traffic accidents are viewed with disfavor and in the absence of anything to indicate it was beyond the ability of the jury to understand the facts and draw their own conclusions, expert testimony is not admissible. Caldwell v. State, 267 Ark. 1053, 594 S.W.2d 24 (1980); Woodward v. Blythe, Adm’x., 249 Ark. 793, 462 S.W.2d 205 (1971); Huiton v. Stanton, 121 Ark. 626, 183 S.W. 765 (1916).
There was no dearth of proof in this case as to potential causes of this collision. A passenger seated immediately behind the driver testified that the speed of the bus was 63 miles an hour and expressed her opinion that such speed was excessive for the prevailing conditions. We cannot say the trial court’s discretion was abused by excluding Dr. Hicks’s testimony.
AFFIRMED.
Purtle, J., dissents. | [
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Holt, J.
This appeal comes from a judgment, October 5, 1949, for appellee against appellant in the amount of $505.66, as damages for the unlawful and unauthorized removal of appellee’s automobile from appellant’s parking lot in Little Rock on August 16, 1948, at about 11:00 a. m., without appellee’s knowledge or consent.
Appellee was the only witness in the case. At the close of his testimony, appellant, without offering any testimony, asked for an instructed verdict in its favor. Appellee also asked for a verdict in his favor for the amount claimed, whereupon, the court took the case from the jury and entered a judgment for appellee, as indicated.
Appellee owned a 1941 Buick automobile and paid appellant $8.00 per month in advance for use of its storage lot. He testified, in effect, (quoting from appellant’s abstract) : “That they put a sticker on the windshield, and he would drive in and leave his car in the driveway, with the key in the car and the attendant would park it then, or when he could get to it; that he had no particularly assigned space, he just left his keys in the car and they parked it; that on August 16, 1948, he parked there about nine o ’clock in the morning and went to his office, then later on in the morning he went out on a trip and got back about eleven and drove in and left the car again in the driveway for the attendant to take care of. He then went to his office, After lunch, about three o’clock, he went out to look at another piece of property and he went to get his car and it wasn’t on the lot.”
Appellant says: “It is undisputed that appellee parked his automobile on the day in question on appellant’s parking lot; that appellee paid a consideration therefor; and that the appellant thereby became a bailee for hire; that the automobile was missing when appellee. called for it; that the automobile was stolen from- the parking lot; that the thief was convicted andáis now serving a sentence in the Arkansas Penitentiary; that the automobile was recovered by the Sheriff at Morrilton, Arkansas, and returned to the appellee in a damaged condition. ’ ’
For reversal, appellant states his contention as follows : “It is the contention of the appellant that although it was a bailee for hire it was not an insurer and was only liable in the event it was proven to have failed to use ordinary care to protect appellee’s automobile.”
The rule is well settled that when each litigant, as here, asks for an instructed verdict and no other instructions are requested by either side, they, in effect, agree that the issue may he decided by the court, and its ruling, having the same effect as the verdict of a jury, will he permitted to stand if there is substantial evidence to support it. (General Contract Purchase Corporation v. Row, 208 Ark. 951, 188 S. W. 2d 507, Headnote 1.)
In the present case, it is conceded that appellant and appellee occupy the positions of bailee and bailor, respectively, and that appellee’s car was stolen and damaged while in the care and custody of appellant, the keeper of the parking .lot. It was further shown that the parking lot attendant knew the appellee and knew which car was his, so the trial court could have inferred that the theft was the result of appellant’s negligence. When these facts were established, a prima facie case was made against appellant and it then became its duty to go forward with evidence to rebut this prima facie case. This, appellant has failed to do. In fact, it offered no testimony at all.
In these circumstances, the well settled rale is stated by the text writer in 24 Am. Jur., p. 508, under the subject “Garages, Parking Stations and Liveries,” § 59, “Evidence — Burden of Proof,” as follows: “The general rule seems to be that a prima facie case is ordinarily made out for the bailor when he proves the bailment and a failure on the part of the bailee to return the property on demand. The duty then usually devolves on the bailee to £go forward’ with evidence to rebut the prima facie case. Thus,«£>ne who brings an action against a garage or livery stable keeper based upon the latter’s negligence ordinarily has the burden of proving such negligence or want of due care on the defendant’s paid; and when a car owner makes out a prima facie case of damage to his car while in the garage keeper’s custody, it becomes the duty of the garage keeper to rebut the prima facie case by showing that he used due care as bailee.” Bee, also, an extended annotation entitled ‘ 'Liability for loss or damage to automobile left in parking lot,” 131 A. L. R., pp. 1175-3205.
The principles of law announced in Hornor Transfer Company v. Abrams, 150 Ark. 8, 233 S. W. 825, a bailment case, apply with equal force here. There it was held: (Headnote 1) “A bailee of goods for hire is not absolutely liable for their loss, but only for their negligent loss,” but that the burden is on the bailee for hire who has been placed in exclusive possession of the property, as here, to explain the loss thereof before the bailor could be put upon proof as to negligence.
No error appearing, the judgment is affirmed. | [
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Lyle Brown, Justice.
By this suit appellant sought judgment against appellee for failure to make and file a return on an execution issued out of the Hot Spring County Circuit Court. The execution was directed to the sheriff of Dallas County because the judgment debtor resided in that county. Appellant filed a motion for summary judgment, which was denied. Then at the trial of the case appellant moved for a directed verdict, which was likewise denied. The jury returned a verdict for appellee and appellant here contends the trial court erred (1) in not granting the motion for summary judgment, and (2) in denying its motion for a directed verdict.
The court was correct in denying the motion for summary judgment. Counter affidavits were filed by ap-pellee in which it was sworn that the execution was actually served, a return made thereon, and mailed to appellant’s attorney. That allegation, as we shall later discuss in more detail, raised a justiciable issue for the jury.
An abridgment of the brief testimony is necessary to an understanding of our holding on appellant’s other point, namely, that it was entitled to an instructed verdict. The circuit clerk’s record was introduced to show that a judgment was entered in the case of Southern Credit Corp. v. Bobby Erwin, that an execution thereon was issued and was never returned. Appellee, the sheriff, was called by appellant. He testified that the execution was sent to him by appellant’s attorney; that he received two copies; that he made his return on one copy and mailed it to the attorney who sent it to him. The first witness for appellee was Dan Buford, a deputy sheriff in Dallas County. He said he accompanied the sheriff to the home of Bobby Erwin in Fordyce; that they found nothing on which to levy; that they returned to the sheriff’s office; that Buford made out a bill for the cost of levying the execution; that the sheriff made out the return; and that the bill and the execution document were placed in an envelope and dropped in the mail basket in the sheriff’s office. Bobby Erwin testified that the sheriff and his deputy came to his home with the execution, serving a copy thereof on him, but that he had no property on which to levy. Sheriff Atkinson testified he received the execution in the mail from attorney Howard from Little Rock and within a few days went to the home of Erwin, along with his deputy, and served the execution; that he found no property on which to levy; that he made a return on one of the copies and mailed it along with Deputy Buford’s bill to attorney Howard. “I mailed it back to him because I received it from him. I usually do that. Most lawyers like to see what is on the return. I usually go ahead and serve the papers and then bill the attorney for it. I was paid for the service of this execution.” In other words appellee was saying he mailed the' execution and the bill for services in the same envelope and attorney Howard responded by sending back a check for the service.
At the close of appellant’s (plaintiff’s) case, plaintiff made a motion which is usually made by defendant — motion for a directed verdict. In the first place, the sheriff, as appellant’s witness, testified that he mailed the execution to appellant’s attorney, from whom the sheriff received the execution. That testimony, absent explanation, could have caused the jury to conclude that the failure to file the execution with the clerk was caused by appellant’s attorney. In the second place, “a directed verdict for the plaintiff is a rarity”. Hales & Hunter Co. v. Wyatt, 239 Ark. 19, 386 S.W. 2d, 704 (1965). “A directed verdict at the close of the plaintiff’s evidence should be sparingly granted”. Jeanes v. Milner, 428 F. 2d 598 (1970); Spink v. Mourton, 235 Ark. 919, 362 S.W. 2d 665 (1962).
Appellant’s final argument is that it should have been granted a directed verdict at the close of all the evidence. That is based on the theory that the failure of the sheriff to return the execution to the clerk within the time required by statute, is not excusable in the law. Ark. Stat. Ann. § 30-431 (Repl. 1962) says: “All executions shall be returnable sixty days from their date”. Ark. Stat. Ann. § 29-208 (Repl. 1962) says judgment shall be rendered for the plaintiff against a sheriff for failure to return an execution. Many of our early cases literally interpreted and strictly enforced the quoted statutes. For example, see Herr & Co. v. Atkinson, 40 Ark. 377 (1882); Jett v. Shinn, 47 Ark. 373, 1 S.W. 693 (1885). In cases subsequent to those cited, our court has somewhat receded from its original “hard line” attitude. One of the leading examples is the case of Bickham v. Kosminsky, 74 Ark. 413, 86 S.W. 292 (1905). Kosminsky sued Sheriff Bickham and his sureties for failure of the sheriff to return an execution within the statutory period. The defendants answered that the attorney for the plaintiffs in connection with the judgment had insisted that the sheriff hold the execution beyond the statutory period. The court sustained a demurrer to the answer. This court reversed, holding that the answer presented a good defense. This court said:
Those who propose to invoke against officers the severe penalties of the statute upon which this motion is based must be careful to do nothing which directly or indirectly contributes to the omission of duty complained of. Simms v. Quinn 58 Miss. 221. This statement may reach further than was contemplated in Jett v. Shinn, but it well illustrates the application of the rule announced in Jett v. Shinn, that the act or instructions of the party in interest in preventing the return is a defense to the officer.
The plaintiff in execution has a right to control the execution by himself or attorney, and, having such right, the officer must follow his instructions.
This authority of the plaintiff must not be exercised to cause the sheriff to omit a statutory duty; but if it does cause him to do it, the plaintiff cannot take advantage of it.
In a somewhat similar state of facts, the trial court held that the failure of the sheriff to return the execution was due to the instructions of the plaintiff. Wilkerson v. Mobley, 152 Ark. 124, 237 S.W. 726 (1922). This court affirmed and said:
The statute in question is highly penal, and a party invoking it must bring himself within both the letter and spirit of it. Therefore, he can do nothing which directly or indirectly contributes to the omission of the duty complained of and still hold the sheriff answerable under the statute.
The latest pronouncement on the question which has come to our attention is Hamilton v. Pan American Southern Corp., 238 Ark. 38, 378 S.W. 2d 652 (1964). There we said: “In dealing with a statute of this kind it is well established by our decisions that it 'must be strictly construed in favor of those upon whom the burden is sought to be imposed’ ”.
We summarize the undisputed evidence which we think made a justiciable issue of fact. Sheriff Atkinson testified that he received the execution from attorney Howard, not from the clerk; there was a cover letter which instructed the sheriff to mail his bill to the attorney; he mailed the execution and the bill to the attorney in the same envelope and there was a prompt return of a check for services; he mailed it to the attorney because he received it from the attorney (this fact is of considerable significance to us); and further, that was his custom in his nine terms in office because the lawyers wanted to see what was on the return. From the unchallenged facts it could have been reasonably deduced that the execution could have been lost in the attorney’s office. Additionally, when the process was sent to the sheriff, not by the clerk, but by the attorney, the latter may have contributed, indirectly at least, to the sheriff’s returning the execution to the attorney. This is not to say that the attorney is subject to criticism because it is common knowledge that sheriffs ofttimes send their returns to counsel. And, of course, it goes without saying, we are not concluding that is what did in fact happen; we are only saying that the trier of facts could reasonably make such conclusions.
Affirmed. | [
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Jack Holt, Jr., Justice.
The issue presented is whether the appellant, Carroll Electric Cooperative Corporation (hereafter “Carroll Electric”), had a right pursuant to a 1962 easement to extend certain existing power lines across the western portion of appellees’, Joe and Amelia Benson (hereafter “the Bensons”), property or was required to acquire a new easement. We hold that the trial court erred in determining that Carroll Electric could not extend this power line under a 1962 easement but remand to the trial court for its determination of the reasonableness of the route chosen for the line.
On May 12,1962, the appellees’ predecessor in title, Arrow Land Company, Inc., granted Carroll Electric the following described right-of-way easement:
KNOW ALL MEN BY THESE PRESENTS, that we Arrow Land Company, Inc. . . .do hereby grant unto the Carroll Electric Cooperative Corporation. . .the right to enter upon the lands of the undersigned. . .and to place, construct, operate, repair, maintain, convert to higher or lower voltage, to extend lines for other service upon the above lands and to extend lines from services on this land to and for service to other property and services beyond the above described lands, and overhead or underground electric transmission or distribution line or cable, such overhead lines or underground cable to serve as distribution or transmission line or both and to excavate, to cut, and trim trees and shrubbery to the extent necessary to lay cable and to keep clean said electric lines or cable, and to cut down from time to time all dead, weak or dangerous trees that are tall enough to strike wires in falling.
The undersigned agree that all poles, wires, and other facilities, including any main service entrance equipment, installed on the above described lands at the Cooperative’s expense shall remain the property of the Cooperative, removable at the option of the Cooperative upon termination of service to or on said lands.
In granting this easement, it is understood that all pole locations, only a single pole and appurtenances will be used, and that the location of the poles will be such as to form the least possible interference to farm operations, so long as it does not materially increase the cost of construction.
(Emphasis added.)
Three years later, in 1965, this property, Pointe Clear Heights Subdivision, was platted. In 1967, in accordance with this right-of-way easement, Carroll Electric constructed an overhead electric line into the center of the Bensons’ property to serve the residence now owned by the Bensons.
The Bensons filed this lawsuit on June 29,1992 after Carroll Electric entered their land and cut down numerous large trees to clearcut a path for the construction of an overhead electric transmission line on the west side of their property to provide electric power to a residence on property in Pointe Clear Heights Subdivision owned by Mr. Larry Cox. Carroll Electric placed several tall poles within the clearcut path in preparation for stringing the overhead transmission line across the Bensons’ property. Carroll Electric did not confer with the Bensons prior to cutting the path or placing poles nor did it give the Bensons an opportunity to “delimit” (lay out the boundary of) the easement. The Bensons approached the electric company and offered to permit underground wiring but the company refused.
The Bensons filed a complaint in Benton County Chancery Court requesting a preliminary as well as a permanent injunction enjoining Carroll Electric from further constructing overhead transmission lines across their property. The chancery court granted the preliminary injunction. Thereafter, the Bensons amended their complaint to ask for a mandatory injunction ordering Carroll Electric to remove all new poles and new overhead electric lines placed on the clearcut path across their property. Both sides filed motions for summary judgment, and the matter was submitted to the court. After considering the stipulated exhibits and facts, the chancellor granted the Bensons’ countermotion for summary judgment. In reaching this decision, the chancellor made the following findings of fact and conclusions of law:
6. On May 12, 1962 plaintiffs’ predecessor in title, Arrow Land Company, Inc., granted Defendant, Carroll Electric Cooperative Corporation, a “floating” (not described by metes and bounds) right-of-way easement across plaintiffs’ land and adjoining land. The legal description of said right of way easement includes all of the land within Pointe Clear Heights Subdivision, Benton County, Arkansas.
7. The plat of Pointe Clear Heights Subdivision was filed of record in 1965.
8. In 1967, defendant constructed an overhead transmission line across the Benson’s property to provide electric power to the residence on the property. Defendant has constructed other overhead electric lines throughout Pointe Clear Heights Subdivision to provide electric power to approximately 15 other residences in the subdivision. . . .Defendant has utilized said electric lines for many years to provide electric power to said residences.
9. Defendant proposes to construct a new overhead electric line across plaintiffs’ property to provide electric power to a new residence under construction on property owned by Larry Cox, which adjoins Lot 13, Block 7 of the Bensons’ property. The proposed new electric line would be an extension of an existing electric line. Defendant is legally obligated to provide electric service to the Cox property.
10. Employees of defendant recently entered upon the plaintiffs’ property and cut down numerous large trees to clearcut a path across plaintiffs’ lands for construction of the proposed new overhead electric line. The new electric line was partially constructed prior to entry of the Preliminary Injunction in this case. One additional pole would be installed on the Bensons’ property if the line is completed.
11. Defendant has not obtained a new right-of-way grant from plaintiffs authorizing defendant to construct a new electric line across plaintiffs’ property.
12. The “floating” right of way granted to defendant by plaintiffs’ predecessor in title has become fixed. In Bradley v. Arkansas Louisiana Gas Company, 280 Ark. 492, 659 S.W.2d 180 (1983) the Supreme Court held:
. . .Undesignated grants of rights-of-way may be termed “floating rights-of-way” until located and utilized but thereafter such easements become fixed.
. . .After the location is designated and used it cannot thereafter be redesignated at a different location without another grant.
13. A right-of-way grant is to be construed against the party preparing it, and in construing the grant the objective is to ascertain the intent of the parties.
14. The Court is not persuaded that the grantor of the 1962 “floating” easement intended that power lines could be erected 30 years later by the grantee independent of input by the successors to the grantor and without consideration as to the reasonable use and enjoyment of the property by the successors to the grantor.
15. Defendant cannot rely upon the 1962 easement and should be required to obtain a new easement.
IT IS, THEREFORE, CONSIDERED ORDERED, ADJUDGED AND DECREED that defendant Carroll Electric Cooperative Corporation is hereby permanently enjoined from constructing a new electric line across plaintiffs’ property and defendant is hereby ordered to remove all new poles and electric lines which have been placed on plaintiffs’ property and to remove the debris and tree stumps on plaintiffs’ property within the path cut across said property by defendant.
The chancellor’s reliance upon Bradley is misplaced. In Bradley the issue before this court was whether Arkla had the right under a 1960 easement to relocate a pipeline across the property owners’ land without obtaining a new right-of-way. The new pipeline location was about one hundred feet south of the existing right-of-way. The language of the easement agreement gave the grantor the “right to lay, maintain alter, repair, operate and remove pipe lines for the transportation of oil and gas.” Bradley, 280 Ark. at 495. There, as here, the right-of-way was undesignated. Yet, in holding that a new right-of-way was required, this court held that when the grantee selects a right-of-way not specifically described in the grant, the right-of-way becomes fixed and the “grantee has no right to go upon other parts of the grantor’s land without a new grant.” Bradley, 280 Ark. at 496.
However, Bradley is not comparable to the facts at hand. In Bradley the utility was relocating the right-of-way while here, Carroll Electric is extending a powerline under the authority of the existing easement. This line extension is clearly permitted by the 1962 easement agreement which states that Carroll Electric may “extend lines for other service upon the above lands and to extend lines from services on this land to and for service to other property.'1'1 (Emphasis added.)
While it is true that a right-of-way grant is to be construed against the party preparing it, the language in the 1962 easement plainly provides that Carroll Electric may extend the lines as needed to provide service to other property, and that is just what they have done here. While the right-of-way of the lines to the Bensons’ residence may have become fixed, the 1962 easement is still “floating” as to the extension of a line situated near the west side of their property. In sum, Carroll Electric was within its rights to extend this electric line across the west side of the Bensons’ property to service the Cox property.
Although Carroll Electric is entitled to extend its power lines pursuant to the existing 1962 easement, this right-of-way easement entitles both the grantee and the grantor to a convenient, reasonable, and accessible way. Fulcher v. Dierks Lumber & Coal Co., 164 Ark. 261, 261 S.W. 645 (1924). The location of the undefined right-of-way must be reasonable to both the dominant and servient estates, considering the condition of the place, the purposes for which it was intended, and the acts of the grantee. Id. Further, the owner of the servient estate has the right to delimit the easement. Id. We have consistently applied the law as stated in Fulcher. See Bradley v. Arkansas Louisiana Gas Co., 280 Ark. 492, 659 S.W.2d 180 (1983); Arkansas Valley Elec. Coop. Corp. v. Brinks, 240 Ark. 381, 400 S.W.2d 278 (1966); Drainage Dist. No. 16 v. Holly, 213 Ark. 889, 214 S.W.2d 224 (1948).
A review of the abstract reveals that the parties attempted to stipulate as to the reasonableness of the exact route but ultimately agreed with each other and with the court that this issue should be reserved depending upon the trial court’s decision regarding the status of the easement. As the trial court made no further findings in this regard, we remand this issue to the trial court as well as for further proceedings consistent with this opinion.
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Darrell Hickman, Justice.
At his trial Samuel Robinson conceded that he was guilty of participating in an armed robbery of the High Street Liquor Store in September of 1981, but he sought a lenient sentence. He was found guilty of aggravated robbery and first degree battery and sentenced to twenty-five years imprisonment for the former and twelve for the latter, to be served consecutively.
His first argument for reversal is that he was denied the right to ask Robinson’s partner in the robbery, on direct examination, what sentence he had received for the robbery. It was ten years on a negotiated plea. We cannot say the trial court’s discretionary ruling preventing this information from being considered by the jury was wrong. What sentence another defendant has received is not relevant evidence as to guilt, innocence, or punishment. See Roleson v. State, 277 Ark. 148, 640 S.W.2d 113 (1982). A sentence or lack of one may be offered to show bias or prejudice of the witness because evidence of bias is always admissible. Simpson v. State, 274 Ark. 188, 623 S.W.2d 200 (1981); Klimas v. State, 259 Ark. 301, 534 S.W.2d 202 (1976). But that was not the end sought in this case.
The other argument hinges on whether a proper objection was made to the trial court. On appeal it is argued Robinson could not be sentenced for both aggravated robbery and first degree battery because one offense includes the other. Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981) and Akins v. State, 278 Ark. 180, 644 S.W.2d 273 (1983) are cited as authority.
We have held it is possible to be convicted of both aggravated robbery and battery and be sentenced for each separately. Foster v. State, 275 Ark. 427, 613 S.W.2d 7 (1982). In Akins v. State, supra, the jury was instructed that one offense was included in the other and a proper objection was made to the court’s improper sentence for both crimes.
The entire thrust of the defendant’s argument below was that the court should impose concurrent sentences. Four times this was mentioned:
DEFENSE ATTORNEY:
Your Honor, we would make a notation that we would move now that the punishment be concurrent on the battery and the robbery charges.
THE COURT:
It’s premature unless you’re going to tell them to go out and fill out both of them. They may find him not guilty on one.
DEFENSE ATTORNEY:
Okay.
THE COURT:
But, for the purposes of the record, I’ll let you note that you want them both to run concurrently. And I guess it’s on the basis of the single transaction theory.
DEFENSE ATTORNEY:
Yes, your Honor.
Your Honor, I’ve got two things for the Court. One is to move that the sentences be concurrent and would be interested in the Court’s feelings on that. And, secondly, the matter we discussed earlier about two or three days to get the family situation taken care of.
Your Honor, we would move concurrent. We would cite 41-105 and all of its subsections as a basis. We would also note the co-defendant’s doing ten years, and that there’s concurrent sentencing in that and ten years is the minimum. It is his first offense. He is looking at — as I understand the law, he’s looking at probably ten to twelve years anyway because it’s an aggravated robbery after the new statute has passed and it’s half his time, which is a substantial sentence anyway.
No, your Honor. We renew our motion for concurrence based upon statute. We know the concurrent or consecutive sentence is a matter usually left to the discretion of the trial court. We point to the trial court the fact that the co-defendant in this case got ten years. The co-defendant admits that he is the one that fired the shots. [Emphasis added.]
Defense counsel only argued to the trial judge that Robinson should be sentenced concurrently. He made no argument that one offense was included in the other. It was never argued, as it was in Akins v. State, supra, that the court could not sentence Robinson for both offenses.
Ark. Stat. Ann. § 41-105 (Repl. 1977) cites five different situations where conviction for more than one offense is barred. An allusion to all subsections of that statute and the court’s reference to Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981), cannot be the basis for finding a clear objection made in view of counsel’s repeated request that the sentences be made concurrent. A fair reading of the record reflects that counsel sought leniency in the sentence, not to prevent any conviction or sentence at all for one of the offenses charged. A timely and appropriate objection must be made to preserve an objection on appeal. Swaite v. State, 274 Ark. 154, 623 S.W.2d 176 (1981); Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). We have never adopted the doctrine of plain error and in order to rule for the appellant we would have to apply that principle in this case. Wicks v. State, supra.
Affirmed.
Purtle, J., dissents.
We note that the trial judge said that Swaite v. State was decided on the single transaction theory [Ark. Stat. Ann. § 41-105 (1) (e)] and he was wrong. In Swaite we held that the appellants could not be convicted of both attempted capital murder and aggravated robbery because in order to find attempted capital murder, the jury was compelled to find that the appellants committed aggravated robbery. Therefore, in that situation, aggravated robbery was a lesser included offense of attempted capital' murder and the appellants could not be convicted and sentenced for both under Ark. Stat. Ann. § 41-105 (1) (a). | [
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Smith, J.
Appellant bought a tract of land in Poinsett County at a sale for the taxes of 1925, and, after pay-' ing the taxes for the ensuing two years, obtained a clerk’s deed. On November 15, 1928, after receiving his deed, appellant brought suit against the tenant in possession for rent. The original owners and the holder of a mortgage from them intervened, and were thereafter treated as defendants, and the canse was transferred to equity, where a decree was rendered canceling the tax deed, hut declaring a lien against the land in favor off appellant for the amount of the taxes which he had paid, and a commissioner was appointed to sell the land if the amount so adjudged was not paid within the time limited.
Pursuant to this authority, the commissioner advertised and sold the land on August 17, 1929, at which sale appellant became the purchaser. A report of this sale was duly made, which came on for confirmation and was duly heard on September 9, 1929, at which time defendants filed exceptions to the report of sale and objected to its confirmation upon the grounds that the land had been sold for an inadequate price, and that a tender had been made and refused before the sale of the amount due under the decree of sale, and there was a renewal of the tender of the amount due under that decree.
The matter of the confirmation of the sale was heard on September 9, 1929, and the decree then rendered recites that it was heard upon “the report of the sale by the commissioner above named and the decrees of this court formerly rendered in this cause, and the evidence of J. L. Burns, from all of which the court finds: that the sale in question should be set aside upon condition.” It ■ was then decreed that the commissioner’s sale be set aside upon the condition that the defendants, or either of them, pay to the plaintiff, or to the clerk of the court, on or before the next regular term thereof, the sum due plaintiff, “as fixed by the prior decree of this court herein,” with interest at six per cent.
Thereafter, on January 6, 1930, which appears to have been a day of the ensuing December term of the court, the matter was further heard on a motion filed by plaintiffs to set aside the decree of September 9, 1929, and a response thereto filed by J. L. Burns.
Plaintiff insisted, in his motion last referred to, that there had heen even then no sufficient tender of the sum due him, and he prayed that the decree of September 9, 1929, be set aside, and that the court approve and confirm the sale of the commissioner which the decree of September 9,1929, had refused to do. Upon this hearing the court found there had been a substantial tender and a payment to the clerk of the court of the full amount demanded by the clerk under and in satisfaction of the prior decrees of the court, and that the defendants had “substantially, if not literally, complied with the order of the court,” and the prayer for confirmation of the commissioner’s sale was again refused, and this appeal is from that decree.
The decree of the court below must be affirmed. The appeal was perfected July 5, 1930, which was barely less than six months from the date of the decree of January 6,1930, but this latter was not the final decree. The rights of the parties were fully adjudged under the decree rendered 'September 9, 1929, and that was the final decree, and the decree of January 6, 1930, was a mere refusal to vacate the prior decree. Feild v. Waters, 148 Ark. 325, 229 S. W. 735 ; Harvey v. Marr, 173 Ark. 90, 291 S. W. 981 ; Flanagan v. Drainage Dist., 176 Ark. 31, 2 S. W. (2d) 70 ; Foulkes v. Foulkes, 173 Ark. 188, 293 S. W. 1 ; Prouty v. Guaranty Loan & Trust Co., 174 Ark. 19, 294 S. W. 362 ; Security Mortgage Co. v. Bell, 175 Ark. 128, 298 S. W. 865 ; Parker v. Bodcaw Bank, 161 Ark. 426, 256 S. W. 384 ; Robertson v. Yarbrough, 160 Ark. 223, 254 S. W. 492 ; Simmons v. Turner, 171 Ark. 96, 283 S. W. 47 ; Wharf Imp. Dist. v. United States Gypsum Co., 181 Ark. 288, 25 S. W. (2d) 425.
The appeal was not therefore perfected in time, but we would be required to affirm the decree of September 29, 1929, even though an appeal had been perfected in time.
Appellant says the decree of September 9, 1929, was erroneous in two respects. First, that no reason was shown for the refusal to approve the commissioner’s prior sale except that the land had sold at an inadequate price; and, second, that it was error to allow him interest at six per cent., whereas he was entitled to interest, as a tax purchaser, at ten per cent.
It is conceded that mere inadequacy of price was not a sufficient reason to refuse to confirm the report of the commissioner’s sale. But this was not the only reason assigned in the exceptions to the confirmation of the commissioner’s report. It was alleged in the exceptions that a full tender had been made of the amount due plaintiff — appellant—under the decree which had canceled the tax sale. The decree of September 9, 1929, recites that that decree had been rendered upon the oral testimony of J. L. Burns, with other evidence. Burns was the administrator of the estate of his father, who had become the owner of the mortgage on the land by assignment of it to him, and this oral testimony has not been preserved and is not now before us. There is therefore a conclusive presumption that this oral testimony sustained the allegation that a tender had been made before sale. Petroleum Producers’ Assn. v. First Nat. Bank, 165 Ark. 267, 263 S. W. 965 ; Roth Tobacco Co. v. Layton Department Store, 163 Ark. 221, 260 S. W. 25.
It is also to be remembered that in his exceptions Burns renewed his tender. If’ therefore, there had been a tender before the sale, which was renewed when the report of the commissioner was heard, the sale should not have been confirmed, and the court was correct in refusing to allow interest thereafter at a higher rate than six per cent., as appellant could not refuse to accept the money due him and demand interest thereafter at ten per cent. Bender v. Bean, 52 Ark. 132, 12 S. W. 180, 241.
The decree must therefore be affirmed, and it is so ordered. | [
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Jack Holt, Jr., Chief Justice.
On January 26, 1988, appellant Gene Ridgeway filed a petition requesting that separate appellees Donald Ray and Steve Scudder be declared ineligible as candidates for their respective party primaries because they failed to file the requisite political practice pledges “in person” before the county clerk in violation of Ark. Code Ann. § 7-6-102 (1987). Ridgeway further requested a writ of prohibition prohibiting the separate appellee political parties and their officers from certifying Ray and Scudder as candidates.
The trial court determined that section 7-6-102 does not require that candidates file their petitions “in person” and that political practice pledges had been timely filed on behalf of Ray and Scudder. Accordingly, the petition for writ of prohibition was denied. Ridgeway argues the court erred in its interpretation of section 7-6-102. We disagree and affirm.
Section 7-6-102(a)(l) in relevant part provides:
Candidates ... for county, municipal, or township offices shall file with the county clerk ... a pledge in writing, stating that they are familiar with the require ments of §§ 7-1 -103,7-1 -104,7-3-108, and 7-6-101 — 7-6-104 and will, in good faith, comply with their terms.
On the issue before us, the trial court’s findings and judgment can be summarized as follows:
(1) . Donald Ray signed and filed his political practice pledge with Betty Boyd, the elected assistant secretary of the Jackson County Democratic Party, who in turn filed Ray’s documents with the Jackson County Clerk within the time prescribed by law.
(2) . Steve Scudder signed and filed his political practice pledge with Billy Ivy, the secretary of the Jackson County Republican Party, who in turn, with the party chairman, filed Scudder’s documents with the Jackson County Clerk within the time prescribed by law.
(3) . If the legislature had intended to require a candidate for political office to appear only in person, and not by designated representation, the legislature should have so stated.
(4) . Public policy suggests that, when possible, the law, as well as party rules, should be interpreted to encourage, rather than to discourage, participation by the electorate in the political process.
(5) . The obvious purpose of the applicable statute is to insure that a prospective candidate has in fact signed the required documents to qualify as a candidate for office, has complied with the rules prescribed by the particular political party, and that the documents required by law have been timely filed in the county clerk’s office.
(6) . The evidence reflects that the purpose and requirements of the law were met by the defendants, and that plaintiff’s petition should be denied.
The record clearly supports the trial court’s findings of fact. Further, we find no fault with the court’s rationale and conclusions of law. Nowhere in section 7-6-102 is there a requirement that candidates file their political practice pledges in person, nor has appellant Ridgeway offered any convincing argument or citation of authority to show otherwise.
Affirmed.
Hickman and Glaze, JJ., concur. | [
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Dunaway, J.
Elsie Dalton McGee has appealed from a decree partitioning in kind certain lands in Ban-dolph County, Arkansas.
In 1935 Ur. J. W. Dalton and liis wife conveyed to tlieir four daughters by warranty deed the lands involved in this appeal. The pertinent language of this deed reads as follows: . . we . . . do hereby grant, bargain, sell and convey unto the said Mrs. Nellie E. Hatcher, Mrs. Blanche Celeste Henderson, Mrs. Sarah Elsie McGee, and Mrs. Willie May Wilson all the following described real estate, lying and being situated in Eandolph County, Arkansas, the respective interests taken by each of the said grantees being hereinafter set out, to-wit: (giving description of lands) it being the intention of this deed to convey all lands in Eandolph County now owned by us or either of us.
“It is intended by this conveyance to deed to each of the said Nellie E. Hatcher, Mrs. Blanche Celeste Henderson, and Mrs. Willie May Wilson, absolute title to one-fourth interest in all the said lands and to Mrs. Sarah Elsie McGee an estate of one-fourth interest therein, during her natural life, with remainder to her bodily heirs, or in event she leaves no bodily heirs surviving her, such remainder to go in equal parts to the said Mrs. Nellie E. Hatcher, Mrs. Blanche Celeste Henderson, and Mrs. Willie May Wilson.
“To have and to hold the said described lands unto the said Nellie E. Hatcher, Mrs. Blanche Celeste Henderson, Mrs. Willie May Wilson and Mrs. Sarah Elsie McGee, and unto their heirs and assigns, subject to the provision in last paragraph above as to the estate granted to said Mrs. Sarah Elsie McGee.”
This partition suit was filed by Nellie E. Hatcher, as owner under the above-quoted deed of an undivided one-fourth interest in the lands in question, and Lewis D. Hatcher, who had acquired the undivided one-fourth interest of Mrs. Celeste Dalton Henderson. The heirs of Mrs. Willie May Wilson, owners of her undivided one-fourth interest, and Elsie Dalton McGee, owner of the remaining undivided one-fourth interest, were made parties defendant. It was alleged in the complaint that Mrs. McGee was the owner of a life estate.
Two issues were raised in the answer filed by Mrs. McGee. She asked the court to decree that she was owner of an undivided one-fourth interest in fee, rather than of a life estate. She further contended that if her estate was only one for life, there could be no partition.
The Chancellor held that Mrs. McGee’s interest in the lands in suit is an estate for life, and decreed partition in kind with Mrs. McGee’s share set apart to her for life, remainder to her bodily heirs. On this appeal Mrs. McGee argues the same two issues presented in the court below.
That Mrs. McGee holds only a life estate under the deed from her father and mother is clear from the quoted language of the instrument. Although it is argued that there is a repugnancy between the granting and haben-dum clauses, this is plainly not so, and it is not even necessary to resort to the rule in Beasley v. Shinn, 201 Ark. 31, 144 S. W. 2d 710, 131 A. L. R. 1234, in construing the instrument. In the granting clause, it is specifically said that the “respective interests taken by each of the said grantees being hereinafter set out”; then follows the language limiting Mrs. McGee’s one-fourth interest to an estate “during her natural life, with remainder to her bodily heirs,” and if none survive her, remainder to her named sisters.
The other question presented by this appeal does not appear to have ever been decided by this court. The statute under which this suit was filed reads in part as follows : “Any persons having any interest in and desiring a division of land held in joint tenancy, in common or in coparceny, absolutely or subject to the life estate of another, or otherwise, or under an estate by the entirety where said owners shall have been divorced either prior or subsequent to the passage of this Act, except where the property involved shall be a homestead and occupied by either of said divorced persons, shall file in the circuit or chancery court a written petition in which a description of the property, the names of those having an interest in it, and the amount of such interest shall be briefly stated in ordinary language, with a prayer for the division, and for a sale thereof if it shall appear that partition cannot be made without great prejudice to the owners, . . .” Ark. Stats. (1947), § 34-1801.
In Krickerberg v. Hoff, 201 Ark. 63, 143 S. W. 2d 560, we held that one owning both an undivided one-half interest for life and the entire fee in certain property was entitled to partition against the owner of the other undivided life interest. There, in discussing whether the parties were co-tenants, or tenants in common, within the meaning of the partition statute, we said at page 67: “In determining whether there is a co-tenancy or tenancy in common, the test seems to he whether the right of possession is present. In the instant case the right of possession is present, both appellee and appellant being entitled to possession of an undivided one-half interest of the entire property.”
An earlier case in which we impliedly approved a partition between the owners of undivided interests in fee and the owner of an undivided interest for life, which was followed by contingent remainder interests, is Liberty Central Trust Co. v. Vaughan, 167 Ark. 219, 267 S. W. 361. The right of partition was not actually considered by the court, a prior consent decree of partition not having been appealed from; the question in the case being whether the partition decree had enlarged the interest of one of the remaindermen from a contingent to a vested remainder. The court did, however, discuss the earlier partition proceedings with apparent approval. It should be noted, though, that in that case the contingent remain-dermen were made parties defendant in the partition suit.
The exact question now before us is whether the owner of an undivided interest in fee is entitled to partition in kind where one of the present possessory interests is a life estate with contingent remainders thereafter limited, and the remaindermen are not in being; and further, if there may be partition, whether it is effective only for the duration of the life estate or is binding as to the remainder interests as well.
There have been a great many variations in the decisions in different jurisdictions on the right to partition among the owners of possessory interests, where some own the fee and others have life interests only; distinctions being made as to whether it is the owner of an inter est in fee or tlie Me tenant who is seeking the partition, whether the remaindermen may or must be made parties to the suit, and the extent to which they are bound by the decree. Differences in the language of the various statutes account for much of the diversity in the cases. The authorities are collected in an annotation in 12 A. L. R. 662, supporting the statement that “under statutes authorizing partition in kind or sale for partition among co-tenants, it is recognized quite generally that an owner in fee of an undivided share in real estate is entitled to a judicial separation of his share from that of an undivided share held by another in life tenancy at least for the duration of the life estate. ’ ’
We hold that in the case at bar the court properly decreed a partition in kind, and that the separation of the undivided shares as ordered is binding upon the owners of the future interests in the share of Mrs. McG-ee. This is in accordance with the view expressed in 3 Simes Law of Future Interests, § 661, p. 74:
“It would seem that, in order to effectually partition the entire estate of a possessory co-owner, it is sometimes necessary to subject a future interest to partition. Thus, under statutes limiting the power to partition to those who have possessory interests, there is frequently a liability to be subjected to partition on the part of persons having future interests. . . .
“. . . Indeed, if a plaintiff in a partition action owns an undivided share in fee simple absolute as a pos-sessory co-owner, it would seem that he is entitled to partition of the entire fee simple and thus has the power to bind owners of contingent or defeasible remainders ox-executory interests or indeed any other owners of future interests in the other undivided shares.”
The rule is stated as follows in Restatement, Property, § 126:
“ (1) When a possessory estate for life is owned by a joint tenant or by a tenant in common, and at least one undivided share in such land is
“ (a) owned in fee simple by another joint tenant or tenant in common:
then such joint tenant, or tenant in common, has a power to compel the partition of the ownership of the land in which snch estate for life exists, so as to hind the future interests limited after such estate for life, unless the creator of the estate for life, by the terms of the creation of such estate, has manifested an intent that there be no such power, . .
See, also, Restatement, Property, § 177; Waldon v. Baker, 184 Okla. 492, 88 P. 2d 352; Trumbo v. Sanford, 305 Ky. 231, 203 S. W. 2d 22; Whittaker v. Porter, 321 Ill. 368, 151 N. E. 905.
The decree is affirmed. | [
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Carleton Harris, Chief Justice.
On April 23, 1969, W. I. Forrester, an attorney of Memphis, Tennessee, ordered abstract from appellee, Crittenden Abstract & Title Company, Inc., for Lots 1, 1A, 2, 2A, and 3 in Block 4 of Haisch Subdivision. The abstract was completed and delivered on May 20, 1969 to the attorney for Ray-Don Bildors, who examined same and approved the title on the basis of the abstract as delivered; Ray-Don Bildors thereupon acquired the property. In the latter part of November, 1970, it developed that Carrie Arnold Crane claimed title to this property, Crittenden Abstract & Title Company, Inc. learning of this claim about December 28, 1970, and two days later, it was determined by the latter that an instrument had been omitted from the abstract. Prior thereto, appellant, St. Paul Fire and Marine Insurance Company, had issued its Errors and Omissions Policy to appellee, effective from October 23, 1968 to October 23, 1969, and this policy had been renewed for the year October 23, 1969 to October 23, 1970. At that time, appellee changed to Lloyds of London, and the latter company issued its policy effective from October 23, 1970 to October 23, 1971. Both companies denied liability, appellant’s denial being based on a provision of the policy reading as follows:
“IV. POLICY PERIOD, TERRITORY. This Policy applies to claims, suits or any other action arising during the Policy period within the United States of America, its territories or possession, resulting from negligent acts, errors or omissions of the Insured, their predecessors or any person now or heretofore employed by the Insured or any predecessor.”
Lloyds of London denied liability, basing its contention on the following clause:
“It is understood and agreed that, notwithstanding anything contained herein to the contrary, this Policy shall not indemnify the Assured in respect of any claim made against the Assured by reason of any negligent act, error or omission committed, or alleged to have been committed, prior to ....... . OCTOBER 23. 1970.”
Appellant company denied liability because the abstract company’s error was not discovered during the term of its policy, but rather was discovered during the period that the Lloyds of London policy was in effect; Lloyds denied liability because the error was not committed during the term of its policy, and accordingly neither company would accept any responsibility. The lands involved consisted of 1.4 acres, but by the time the controversy arose, the acreage had been sub-divided into lots and blocks, streets had been built, sewers, water, and lights installed, and houses built, and accordingly, the total value of the lands had been greatly enhanced. Mrs. Crane had employed counsel preparatory to instituting suit, and appellee settled the claim on behalf of Ray-Don Bildors for $6,275.00 and the latter was given a deed by Mrs. Crane. Thereafter, on December 31, 1971, Critten-den Abstract & Title Company filed suit in the Crittenden Chancery Court, later transferred to Circuit Court, against appellant company and Crump London Underwriters, Inc. Each company denied liability and on trial, the only witness testifying was Mrs. Margueritte Held, the owner of Crittenden Abstract & Title Company. The court found that the cause of action arose at the time of the delivery of the abstract, and that accordingly there was no liability against Lloyds and the complaint as to this defendant was dismissed. As to appellant, the court held as follows:
“The abstract was made and delivered May 19, 1969. It appears that that was the date the cause of the action arose. At that time that was all that they [St. Paul] claimed, for their reasons for not being liable. They did not let the matter go any further than that, just denied at the outset that it was not liable. ##*
“From the evidence, it appeared, too, that had she [Margueritte Held] waited and not obtained this best settlement as she could, and at one time that settlement could have been made for $4,000.00 and it had already gone up to $6,000.00, she felt that in view of the improvements, the streets, gutters, utilities, and the residences and other improvements on the property that the suit would be much larger when the title got tied up, and looked a little more than it would be if she could settle it then for the least amount of $6,275.00.
“That was not the ground upon which the company was denying liability; it was denying liability on the ground that it did not arise during the policy period. *** The judgment will go against the St. Paul.”
Twelve per cent penalty was allowed and an attorney’s fee of $2,000. From the judgment so entered, appellant brings this appeal.
For reversal, it is first asserted that the judgment is erroneous because the claim did not arise during the policy period and appellant cites a Louisiana decision and New Jersey decision in support of this contention. In the Louisiana case, J. M. Brown Construction Co. v. D & M Mechanical Contractors, Inc. (First Circuit Louisiana), 222 So. 2d 93, the effective dates of the policy were March 6, 1964 through March 6, 1965 and the alleged error occurred during that period; however, demand for indemnification was not made until May 30, 1967, over two years after the error was made, though this fact would not be controlling. The policy, however, provided that the company would indemnify the assured against any claim caused by error or omission made against them during the period of coverage, there being only one exception, viz., claims of which the assured became aware, would be honored after policy expiration provided written notice was given the insurer during the policy term. In Rotwein v. General Accident Group, 247 A. 2d 370, the New Jersey case, the policy period was April 15, 1961 through April 14, 1964. In July, 1966, when General Accident no longer was the insurer, the defect in the performance of architectural services was first called to the attention of that company. The policy posed three conditions which must be met before General Accident would be liable, the third of these requiring the reporting and commencement of a claim during the policy period. The opinion recites the fact that defects came to the attention of the parties directly involved as early as 1964 while the policy was still in effect, but General Accident did not receive notice until 1966. In the case presently before us, there was no knowledge of any error until after the St. Paul coverage had expired. Be that as it may, we think the wording of the policy, as well as sound logic, requires the construction reached by the trial court in this case. The American Heritage Dictionary of the English Language (1969) defines “arise” as “to come into being; originate.” Certainly the error came into being, i.e., originated, while the St. Paul policy was in effect. What appears to be the general rule is succinctly stated in 1 C.J.S., Abstracts of Title, § 13, p. 399, as follows:
“The right of action against an abstracter for damages resulting from errors, defects, or omissions in an abstract of title prepared by him accrues at the time the examination is made and the abstract prepared and furnished, and not when the wrong is discovered or actual damage results therefrom ###.”
Likewise, in 1 Am. Jur. 2d, Abstracts of Title, § 24, p. 245, we find:
“It is generally held that a cause of action against an abstracter for damages caused by furnishing a defective or incorrect abstract accrues when the examination of the title is reported or the abstract delivered, and the statute of limitations begins to run from the time of the occurrence of the breach of duty, and not from the time of the discovery of the actual damages as a result of the breach.
Strangely, enough, it does not appear that this court has passed directly upon the question and no Arkansas cases are cited by either side. However, in Adams v. Greer, 114 F. Supp. 770, the United States District Court for the Western District of Arkansas (Fayetteville Division), was called upon to answer the exact question of when a cause of action arose against an abstracter for incorrectly compiling an abstract because of a plea of the statute of limitations. Judge John E. Miller, in a well written opinion, thoroughly discussed this subject as follows:
“Russell (& Co.) v. Polk County Abstract Co., 87 Iowa 253, 54 N.W. 212, 43 Am. St. Rep. 381, was an action against an abstract company for negligence in making an abstract and damages arising on account of such negligence. It was held by the court in that case that the cause of action accrued when the abstract was delivered by the abstract company to the purchaser thereof, and that there was a breach of the contract immediately upon the delivery, and not when the injury occurred or the error was discovered. Provident Loan Trust Co. v. Wolcott, 5 Kan. App. 473, 47 P. 8, is an action against an abstractor for giving an incorrect certificate of title, and it was held that the cause of action arose at the date of the delivery of the abstract, and not at the time of the consequential damages. Lattin v. Gillette, 95 Cal. 317, 30 P. 545, 29 Am. St. Rep. 115, was an action against an abstractor for negligence in certifying that a party was the owner, when, in fact, he only had a half interest in the title to the property. It was held that the cause of action accrued at the time of the delivery of the abstract and that the statute of limitations began to run at that time, notwithstanding the fact that the purchaser of the abstract did not discover the defect or error until after the statute of limitations had run, at which time he had to surrender one-half interest in the property. The Missouri courts have reached the same conclusion in Rankin v. Schaeffer, 4 Mo. App. 108, and Schade v. Gehner, 133 Mo. 252, 34 S.W. 576. See, also, note to Equitable Bldg. & Loan Ass’n v. Bank of Commerce (118 Tenn. 678, 102 S.W. 901), 12 L.R.A., N.S., 454. ***
“Since the plaintiffs’ claim accrued when the amended abstract was delivered by defendant to plaintiffs and since this occurred more than three years prior to the filing of the suit herein, the claim of plaintiffs is barred by Section 37-206, Ark. Stats. 1947, Annotated, and the motion to dismiss should be sustained.”
We hold that the claim arises when the abstract is compiled and delivered and not when the error is discovered.
It is next contended that error was committed in the rendering of the judgment because appellee did not comply with a condition precedent in the policy sued on. This argument has reference to the fact that included in the policy is a provision stating:
“No action shall lie against the Company unless, as a condition precedent thereto, the Insured shall have fully complied with all the terms of this Policy, nor until the amount of the Insured’s obligation to pay shall have been finally determined either by judgment against the Insured after actual trial or by written agreement of the Insured, the claimant and the Company.”
Admittedly, no suit was ever filed against the abstract company nor judgment rendered against it, nor did St. Paul agree in writing to any settlement. Accordingly, appellant says that it is not liable. We do not agree. The record reflects that St. Paul Fire and Marine Insurance Company was first notified by letter from Mrs. Held on December 28 that Mrs. Crane was making claim to the aforementioned lands. The company was advised “that since it appears that claim will arise in this matter, I am giving you notice.” On January 4, a second letter was sent by Mrs. Held, attaching a letter from the attorney for Ray-Don Bildors, Inc. advising Mrs. Held to call the matter to her insurance company’s attention inasmuch as it appeared that a claim would be made by the Cranes. On February 11, 1971, inquiry was made of St. Paul by letter of Mrs. Held asking that the company please advise its intentions regarding the claim. On February 16, Mr. Elliott Slutsky, Claim Loss Representative for St. Paul, replied to Mrs. Field as follows:
“In relation to the above captioned claim, Lloyds of London would be your carrier since the discovery date is within their policy period.
Attached please find a portion of your Abstractors Liability policy with us in which I circle number IV Policy Period, Territory which best describes why Lloyds of Lond[on] would be the carrier in this claim.”
On February 18, 1971, William D. Perry, an attorney of Memphis, wrote the attorney for Ray-Don Bildors on behalf of Mrs. Crane, demanding that Ray-Don Bildors execute proper deeds to restore the title back to Mrs. Crane or pay her the reasonable value of the property. Copy of this letter was sent to. St. Paul on February 23. Thereafter, on March 11, 1971, Archie M. Clark, Claim Loss Manager for the insurance company, wrote Mrs. Held as follows:
“As our attitude has not changed in connection with the matter, we feel that the burden should be borne by the Lloyds of London; therefore, I would appreciate your advising the principal in this matter.”
On May 27, the law firm of Spears & Sloan advised both St. Paul and Lloyds that Mrs. Crane was preparing to file an ejectment suit against the owners of houses located on the lands and, “This will develop into a full blown law suit and would require a great deal of technical proof, surveys, and various other things that would be rather expensive.” The letter advised that Mrs. Crane was making claim for $8,000, but that it was believed the claim could be settled for somewhere between $4,500 and $5,000, and it was the opinion of the law firm that “it would be the better part of wisdom to settle it.” On June 7, Mr. Clark of St. Paul acknowledged the letter from the law firm and stated:
“I have reviewed the above captioned along with the investigating adjuster, and we do not see how we are involved in this matter in any way. This is due to the fact that our policy expired October 23, 1970, and the date of discovery of this loss was December 23, 1970. Therefore, we have no alternative other than to stay out of any negotiations that you may have with the Lloyd’s policy.”
On October 8, the company was advised that the claim had been settled through payment by Crittenden Abstract & Title Company in the amount of $6,275.00, and the matter was thus terminated. Apparently, an identical letter was sent to Lloyds, for the attorneys state:
“If either or both of you wish to reimburse Crittenden Abstract & Title Company, Inc. for the sum of $6,-275.00, you may do so and divide the payment in any manner you see fit but in default of any payment we expect to file a declaratory judgment suit against both of you.”
Both companies denied liability.
It is thus apparent that appellant was kept completely informed of developments, and that it not once, but repeatedly, denied liability on the basis of the fact that the error was not discovered during the time that its policy was in effect. The correspondence could not more clearly show that appellant had no intention of doing anything at all. Accordingly, appellee was placed in the position of either settling the claim itself or defending litigation that would bring into the picture numerous additional parties, which, as stated by counsel, would develop into extensive, involved, and expensive litigation; in fact, in studying the record, we agree that there was substantial evidence to the effect that the settlement was wise. To hold with appellant would be to say that ap-pellee, left alone, when appellant should have participated, is penalized for taking action, which in its best judgment, mitigated the damages — damages that under the contract were the responsibility of St. Paul. The general rule is found in 44 Am. Jur. 2d, § 1550, p. 432, as follows:
“An insurer cannot breach its contract by unjustifiably refusing to defend an action against the insured, upon grounds that the claim upon which the action was based was outside the coverage of the policy, and at the same time take advantage of a policy provision prohibiting the insured from settling any claim with out the consent of the insurer except at his own cost. Consequently, an insurer’s unjustified refusal to defend relieves the insured from his contract obligation not to settle, and the insured is at liberty to make a reasonable settlement or compromise without losing his right to recover on the policy. This rule permitting settlements by the insured despite the presence of a ‘no settlement’ clause applies regardless of the type of liability policy involved. However, the courts have frequently stressed the fact that in order to bind the insurer the settlement must be reasonable and entered in good fáith.”
From what has been said, it is apparent that we agree that there is substantial evidence that the settlement was reasonable and entered into in good faith.
Finally, appellant contends that the policy sued on covers only obligations imposed by law upon the insured and appellee settled with a party to whom it had no legal liability. It is pointed out that Mrs. Crane did not contract with the plaintiff for the abstract and in no manner was in privity of contract with the abstract company, i.e., the abstract was not prepared for her use and benefit, and she was a complete stranger to the contract. The case of Talpey v. Wright, 61 Ark. 275, 32 S.W. 1072, is cited in support of the contention. The facts in Talpey are entirely dissimilar to those in the present case. Here, appellee prepared the abstract for Ray-Don Bildors, and it did have an obligation to prepare a correct abstract for that company. Likewise, it apparently being recognized by counsel for Ray-Don, Crane, and appellee, that Mrs. Crane’s claim to the land here in question was entirely valid, the abstract company recognized liability to Ray-Don. In settling the claim, Crittenden Abstract & Title Company paid Mrs. Crane — but Mrs. Crane delivered her deed to the property in question to Ray-Don. In other words, appellee simply settled the claim on behalf of Ray-Don, and there certainly seems to be substantial evidence, as already pointed out, that this settlement was prudent and advisable.
Appellee also advances an additional argument which it is contended is applicable to Points II and III, viz., that St. Paul has estopped itself to deny liability except under paragraph 4 of its policy. This argument relates to the fact that throughout the correspondence between appellant and appellee (heretofore set out), appellant consistently bottomed its denial of liability on the fact that coverage was not furnished under paragraph 4, and appellant never at any time until it amended its pleadings in the trial court, set up these defenses which we have listed under the second and third points. Appellee says that, in reliance upon the position taken by appellant in its letters, it paid the claim and filed its suit to recover payment. In other words, it is argued that appellant, having breached its agreement to defend against the claim, and appellee having taken steps to defend itself, was not thereafter in a position to rely on other provisions. It is true that appellant took a “hands-off” attitude when appellee was threatened with litigation, was well aware of the fact that settlement of the claim was being considered by Crittenden Abstract 8c Title Company, and subsequently aware that such settlement was made, and it may be that there is merit in this contention. Pertinent authorities are cited to that effect. However, inasmuch as we have found appellant’s arguments on these two points to be without merit, there is no need to discuss the question further.
In accordance with what has been said, the judgment is affirmed.
Appellee requests that this court assess an additional attorney’s fee against appellant, which we grant, and we are of the view that a reasonable fee for services rendered in this court is $1,500.00.
It is so ordered.
From the record:
“It is hereby stipulated by and between the attorneys for the plaintiff and Underwriters At Lloyd’s, defendant, that the title of this action shall be amended by substituting as defendant herein, Robert Charles Sells as Lead Underwriter subscribing to Certificate of Coverage No. 30780, in the place and stead of Underwriters At Lloyd’s.
“It is further stipulated that a final determination or judgment by this Court, or any Court having appellate jurisdiction herein, the right to appeal being expressly reserved, against Robert Charles Sells, a defendant herein, being one of the underwriters at Lloyd’s subscribing to insurance described in Certificate of Coverage No. 30780, shall be binding upon all of the underwriters subscribing to said insurance in respect of their liability thereunder, each for his own proper proportionate part, and not jointly or one for another.”
The word “not” is obviously a typographical error. | [
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Per Curiam.
Appellant, Carthel Fuller, Sr., by his attorney, Hubert W. Alexander has filed a motion for rule on the clerk. His attorney admits that the record was tendered late.
We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam dated February 5, 1979, In re: Belated Appeals in Criminal Cases, 265 Ark. 964; Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981).
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Richard B. Adkisson, Chief Justice.
On July 21, 1982, appellant, Robert Ira Roberts, was convicted of second degree murder and sentenced to 20 years imprisonment and fined $15,000. The Court of Appeals certified this case to us under Arkansas Supreme Court Rule 29 (4) (a). The primary question involved in this appeal is whether a party can impeach his own witness by the use of a prior inconsistent hearsay statement under Rule 607, Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979). We reverse and remand, holding that it is permissible if the probative value on the issue of impeachment outweighs the prejudicial effect arising from the danger that the jury will give substantive effect to the prior inconsistent statement.
The evidence reflects that on December 23, 1981, appellant shot and killed his wife in the kitchen of their home. Richard Roberts, the 13-year-old adopted son of the appellant and the deceased, was the only witness present at the time of the murder. That same day Richard gave a statement to the sheriff’s office in which he stated that his father and mother were having an argument concerning bills; that his father left the house and returned with a .22 caliber pistol which he pointed at the deceased and threatened to kill her; that the deceased begged appellant not to shoot her, but he grabbed her by the throat and shot her and then dropped her from his grasp to the floor; and that appellant told him to call an ambulance.
When the State called Richard as a witness at trial, however, his testimony was not as damaging to appellant as the statement which he had given on the 23rd. He testified at trial that appellant and his mother were arguing on the day of the accident about financial obligations; that appellant went out the front door but shortly came back in, and the argument continued; that while he was in the laundry room, he heard a gun go off but did not see a gun until after the murder; and that when appellant saw him he told him to call an ambulance.
Prior to trial appellant filed a motion in limine seeking to prohibit references to the December 23 statement. At the pretrial hearing it was disclosed that Richard had made two statements subsequent to the December 23 statement in which he stated that parts of the December 23 statement were untrue. The two subsequent statements about the incident were consistent with his eventual testimony at trial. The trial court ruled that the statement of December 23 would be admissible for the purpose of impeaching Richard’s testimony.
We first note that although Richard fully admitted making the prior inconsistent statements, the trial court subsequently allowed the prosecution to introduce the complete text of the statement through a deputy sheriff. To do so was error. Once a witness has fully and unequivocally admitted making the prior inconsistent statement, then it cannot be proven again through another witness. McCormick, Evidence, § 37 at 72-73 (2ded. 1972). We also note that in this particular case, the prior inconsistent statements could not be a part of the proof in the case because they are expressly excluded as substantive evidence under Rule 801 (d) (1) (i), Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979) which maintains as hearsay unsworn out-of-court statements in criminal cases.
We still must decide whether the trial court erred in allowing the State to impeach Richard, its own witness, with his December 23 hearsay statement by asking him if he had in fact made the prior inconsistent statements. Under the circumstances of this case we believe the trial court erred by allowing the impeachment because the probative value of such testimony was far outweighed by the danger of unfair prejudice. Therefore, this evidence should have been excluded under Rule 403, Ark. Stat. Ann. § 28-1001 (Repl. 1979).
The State argues that asking Richard about his prior inconsistent statements was for impeachment purposes, but it really was a mere subterfuge. The only conceivable reason that the State could have for impeaching its own witness was to bring before the jury hearsay information not admissible as substantive evidence, hoping that the jury would accord it substantive value although it was clearly inadmissible as such under Rule 801 (d) (1) (i). In this instance the danger of convicting the defendant on unsworn testimony is too great; the limiting instruction to the jury directing them to consider the prior inconsistent statement for impeachment only was not a sufficient safeguard.
Reversed and remanded.
Hickman and Hays, JJ., dissent. | [
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Kirby, J.
This appeal is from a judgment for damages for breach of covenant of warranty in a deed conveying certain lands.
L. Gr. Murphey conveyed 314 acres of land by warranty deed in Monroe County, Arkansas, to T. C. and A. C. Carter, which had been conveyed to him on January 11, 1904, by a deed from Mrs. Emma Smith, widow of the late W. W. Smith one time member of the Supreme Court of this State. He had been the owner of all the lands except an SO^-acre tract, the east half southwest quarter, section 18, township 4 north, range 2 west, which belonged exclusively to Mrs. Smith, and had never been alienated by her prior to the conveyance to Murphey. Litigation arose about the lands between the Carters, Murphey’s grantees, and Albert J. 'Carter, Jr., who claimed to own an undivided interest therein, Murphey not being a party thereto, in which on appeal it was held by this court that Albert J. Carter was the owner of a three-eighths interest in the lands subject to a life estate of L. Gr. Murphey. For a full statement of the case see Carter v. Carter 129 Ark. 7, and additional opinion page 573, 195 S. W. 10, 1184.
L. Gr. Murphey, of whose estate appellant is executor, died March iS, 1929. Thereupon Albert J. Carter brought suit for partition of the lands according to the respective interests of the parties. Appellees admitted three-eighths interest held by Albert J. Carter in all the lands except the 80-acre tract above mentioned, and filed a cross-complaint against appellant executor for judgment because of the failure of title to the three-eighths of the lands conveyed by L. Gr. Murphey. The Carters, Murphey’s grantees, settled this suit by purchasing Albert J. Carter’s interest, paying him $4,500 for his three-eighths interest in the lands. They then brought this suit against the executor of L. Gr. Murphey for the re covery of said amount as damages for breach of his covenant of warranty, and from a judgment in their favor the executor has appealed.
The case was heard on an agreed statement of facts inciting that the decree entered by the chancery court upon the mandate from the Supreme Court in said case wrongfully adjudged Albert J. Carter to have three-eighths interest in the aforesaid 80 acres of land which had been separately owned by the widow of Judge Smith, who conveyed to L. G. Murphey. That his grantees, Carter and Carter, held uninterrupted possession of all the lands granted until the bringing- of this last suit after the death of L. G. Murphey, the life tenant. Albert J. Carter had no title or interest in the said 80-acre tract except because of the decree in the chancery court upon the mandate from the Supreme Court. The executor denied there was any breach of the covenant of warranty in L. G. Murphey’s deed as to the title to the said 80-aore tract of land, and insists that he was entitled to have the value of the life estate, held for 24 years under Murphey’s deed, deducted from the value of the fee warranted in estimating- the measure of damages for the breach of warranty in the deed to appellees for failure of title to the three-eighths interest.
Appellant insists that there was no breach of L. G. Murphey’s warranty to the 80-acre tract of land, which had been the separate property of Mrs. Emma Smith and duly conveyed to him by warranty deed; that the adverse title of Albert J. Carter was subject to the life estate of L. G. Murphey, and that the appellees, having enjoyed the life estate under a conveyance of the fee for a period of '24 years and 4 months and the value thereof exceeding the purchase, price, interest and taxes, were not entitled to recover damages; and that appellees by instituting the suit against Carter requiring him to assert a paramount title, thus inviting an eviction, were thus estopped from claiming- a breach of warranty.
The undisputed testimony shows that L. G. Murphey, of whose estate appellant is executor, owned the said 80-acre tract of land in fee at the time he conveyed the same to appellees under covenant of -warranty with the other lands conveyed; that he was not a party to the suit between Carters, appellees, Ms grantees, and Albert J. Carter, who recovered a three-eighths interest in the lands in the Smith estate according to a decree entered 'by the chancery court upon a mandate from the Supreme 'Court in the said case of Carter v. Carter. Appellees were therefore not entitled to recover the proportionate part of the money paid out to acquire the adverse title to this particular 80 acres. The title thereto was good when conveyed by his warranty deed, and failed, if at all, through no- fault of his, 'but by the wrongful adjudication of the court in a suit to which he was not a party. If the grantor Murphey was without title to the said 80-acre tract of land when his conveyance was made, appellees, his grantees, could have purchased the outstanding title without waiting to be disturbed in their possession, and recovered of the grantor the reasonable price which they fairly and necessarily paid for same, it being incumbent upon them to prove not only the amount paid, but that such payment was the reasonable value of the interest acquired. Pate v. Mitchell, 23 Ark. 591, 79 Am. Dec. 114 ; Farrell Lbr. Co. v. Dishong, 65 Ark. 103, 44 S. W. 1036.
They held and enjoyed undisturbed possession of all the lands conveyed them by Murphey until the bringing by them of this last suit against Albert J. Carter, Jr., to quiet their title thereto. They then purchased his interest, after enjoying the full use and possession of all the lands during the lifetime of their grantor under his deed, and, since there was .only a partial breach of warranty, the grantor being seized of and having conveyed an estate for life, the value of the life estate should have been deducted from the value of the fee, and the amount necessarily paid for purchasing the outstanding title in estimating the. damages for a breach of warranty. 7 E. C. L., § 87, page 1170 ; Curtis v. Brannon, 98 Tenn. 153, 38 W. 1073 ; note Aiken v. McDonald (S. C.) 49 Am. St. Rep. 817 ; Campbell v. Ry. Co., 160 Tenn. 477, 26 S. W. (2d) 141 ; Dallas Compress Co. v. Leopold, 205 Ala. 562, 88 So. 681 ; 2 Tiffany on Real Property, § 455, page 1707.
It follows that the court erred in not allowing- a deduction from the amount paid by the grantees for tbe outstanding title of tbe proportionate amount paid for tbe said 80-aere tract, tbe title to which failed because of tbe clerical misprision in the entry of tbe decrees of tbe court in a suit against appellees, bis grantees, to which he was not a party, and also, in not allowing tbe deduction from said amount paid tbe value of the life estate actually conveyed by tbe warranty deed of said L. Gr. Murphey, appellees’ grantor,
Tbe judgment is accordingly reversed, and the cause remanded for further proceedings according to the principles of equity and not inconsistent with this opinion. | [
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Robert H. Dudley, Justice.
Ark. Code Ann. § 17-91-607(a) (1987) distinguishes between nonprofit hospitals and for-profit hospitals by allowing for-profit hospitals to hold retail pharmacy permits, but not allowing nonprofit hospitals to do so, unless they held such a permit on the effective date of the statute.
The appellants, a group of nonprofit hospitals and a trade association, filed suit seeking to enjoin the appellee, the State Board of Pharmacy, from enforcing the statute. The appellants below argued that the statute violated their right to equal protection of the laws as guaranteed by the fourteenth amendment to the Constitution of the United States, and by article 2, section 18 of the Constitution of Arkansas. The trial court dismissed the complaint at the conclusion of the appellants’ case. We affirm that ruling.
On an equal protection challenge to a statute, it is not our role to discover the actual basis for the legislation. Instead, we are merely to consider whether any rational basis exists which demonstrates the possibility of a deliberate nexus with state objectives, so that the legislation is not the product of utterly arbitrary and capricious government purpose and void of any hint of deliberate and lawful purpose. Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983). Further, the party challenging the legislation has the burden of proving that the act is not rationally related to achieving any legitimate objective of state government under any reasonably conceivable state of facts. Streight, 280 Ark. at 214.
In this case a rational basis does exist for the legislation; the prevention of drug diversion. Drug diversion is the diversion of drugs from one wholesale submarket to another with a resulting loss of control over the drugs.
In June 1985, the Subcommittee on Oversight and Investigation of the Committee on Energy and Commerce of the United States House of Representatives issued a staff report on the subject, commonly referred to as the Dingell report. The report discusses the existence and method of operation of the wholesale submarket, or diversion market, and how it prevents effective control over, and even routine knowledge of, the true source of drugs. It states that, as a result, pharmaceuticals which have been mislabeled, misbranded, improperly stored or shipped, have passed their expiration date, or are bald counterfeits, are injected into the national distribution system for ultimate sale to consumers. The report states that nonprofit hospitals buy at below average wholesale price under a special exemption to federal antitrust laws. “These nonprofit institutions that buy in excess of their legitimate needs and then resell the excess are a significant and growing source of diverted merchandise.” Staff of House Committee on Energy and Commerce, 99th Cong., 1st Sess., Report on Drug Diversion 2 (Comm. Print 1985).
The report further provides:
Nonprofit Institution Diversion
As indicated in a previous section, nonprofit institutions that have purchased pharmaceuticals beyond their needs have diverted the excess to the wholesale market for many years. Recently, however, and in the face of apparent prohibitions against resales by the Robinson-Patman Act (15 U.S.C. 13), the volume of merchandise and the number of diversions from nonprofit institutions appear to have increased dramatically.
This is not to say that the practice is new. Extensive hearings in 1967 and 1969 before the House Select Committee on Small Business provided a forum for complaints that failure to enforce the Robinson-Patman Act was unfairly damaging retail druggists.
An entire industry has sprung up whose sole purpose appears to be to solicit nonprofit hospitals to purchase excess pharmaceuticals using their special discount, which products are then immediately resold to the broker or wholesaler for ultimate resale to the retailer. The current head of the California Board of Pharmacy told the Subcommittee staff that it was his guess that hospital diversion was the leading source of products for the diversion market in his state.
The Subcommittee staff has identified companies in California, Texas and New Jersey that are making such solicitations.
Id. at 21, 23.
The General Assembly may well have been aware of the diversion market and decided to limit its operation. Obviously, nonprofit hospitals could not rationally be prevented from buying authorized drugs for their own in-house use, but they rationally could be prevented from selling drugs at retail to someone who has no present connection with the hospital. This would eliminate the possibility of a nonprofit hospital purchasing drugs at a discount for its own use, or in-house use, and then diverting those drugs to its retail pharmacy. It would also prevent it from purchasing drugs for retail use from other nonprofit institutions. Thus, a rational basis exists which demonstrates a connection with a legitimate state objective.
The appellants next argue that the act is too broad, and therefore, the state classification has no rational basis. Simply stated, they argue that the General Assembly should have only made the retail sale of pharmaceuticals purchased at the discount nonprofit rate unlawful.
The Robinson-Patman Act, 15 U.S.C. § 13, prohibits drug diversion by making the retail sale of pharmaceuticals purchased at the discount nonprofit rate unlawful. The General Assembly may well have been aware of the federal law and realized that even though drug diversion was a federal crime, it still was a growing problem; that simply classifying something as a crime did not necessarily solve the problem. Thus, the General Assembly may have chosen to limit diversion by disallowing any connection between a nonprofit hospital and a retail pharmacy.
The fact that the A rkansas statute is broader in scope than the Robinson-Patman Act does not invalidate the state statute, for, in applying the rational basis test, the judiciary will not act as a superlegislature to question the means employed to accomplish the state objective. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 316, 317 (1976). “As long as the classificatory scheme . . . rationally advances a reasonable and identifiable governmental objective, we [the judiciary] must disregard the existence of other methods of [achieving the legislative goal] that we, as individuals, perhaps would have preferred.” Schweiker v. Wilson, 450 U.S. 221, 235 (1981).
The fact that the General Assembly chose to limit drug diversion by eliminating retail sales by nonprofit hospitals, rather than solely by making such actions a crime, does not render the legislation overly broad.
Affirmed.
Hickman, J., concurs.
Purtle, J., dissents. | [
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Holt, J.
An information (based on Ark. Stats. 1947, § 41-3210) charged tliat Puterbaugh did “unlawfully and feloniously and knowingly accept, receive, levy and appropriate gold, silver and paper money, lawful money of the United States of America, without consideration, from the proceeds of the earnings of Jewel Zornes, a female, then and there engaged in prostitution, against the peace and dignity of the State of Arkansas. ’ ’ A number of witnesses, some of whom were admittedly prostitutes, testified in behalf of the State. Appellant operated a hotel in North Little Rock. The testimony of these women, most of whom had rooms in the hotel, was to the effect that they had an understanding or agreement with appellant that when they picked up a man and took him to the hotel for immoral purposes, appellant would charge $2.50 f*r the use of the room; on the other hand, if appellant obtained a man and then assigned one of the girls to the room, appellant’s fee was one-half of her earnings. A jury found appellant guilty of pandering and fixed his punishment at two years in the State penitentiary. From the judgment is this appeal. For reversal, appellant first questions the sufficiency of the evidence.
Jewel Zornes testified that she first met appellant in May, 1949, at the hotel in question, where she was staying at the time; that she entered into an agreement with Puterbaugh, who was managing the hotel, to stay there and share her earnings as a prostitute with appellant. She testified: “Q. Did you have dates with men up there? A. If we rented the room, we was to give him $2.00. Q. $2.00 out of every $5.00 you made? A. That’s right. Q. Tell the jury the procedure in which men were taken up there? A. Well, if we would go down stairs and talk to men and bring them up there— Q. Downstairs? A. Yes, in the cafe, we would give the manager, Mr. Puterbaugh, $2.50 for the room and my room was No. 3 and Violet Baker’s was No. 23 and Betty’s was No. 1 — that was understood — we walked our men by and I did the paying— I paid Puterbaugh $2.00 or $2.50 for the room. Q. That was for rent? A. Yes, sir, and if he rented the room and called us on a date, we gave him half of what we made. Our walk-up dates didn’t register. ’’ She further testified that she worked under the above arrangements with appellant from May until July, 1949, and that she had dates with men on July 8 and shared her earnings with appellant, and that there were four other prostitutes in the house, that she did not remember how much money she paid appellant. “Q. Jewel, have you any idea how much money you paid the defendant for having dates with men? A. I would like to get one thing clear — those deposits I made that I had slips for, they were not on dates. We saved money from time to time and put it up every two or three weeks. Those others was just $2.00 or $3.00 to $4.00 and $4.50 or maybe $5.00, according to how much we gave him and there wasn’t no receipt on that.”
Betty Joe Clark, who had a similar arrangement with appellant, testified in effect corroborating’ Jewel Zornes. There was also testimony given by the other women of a corroborating nature.
This evidence was ample to support the jury’s verdict. “It is too well settled for dispute that, if there is any substantial evidence to support the verdict, we must permit it to stand, and in determining this question, we must view the evidence in the light most favorable to the State * *" Padgett v. Slate, 212 Ark. 716, 207 S. W. 2d 719. True it is that appellant produced testimony tending to contradict the State’s evidence; however the jury elected to believe the testimony offered by the State, which, as indicated, was ample to support the verdict.
Appellant next contends that the Court erred in permitting the following question and answer propounded to State’s witness Gillespie: “Q. Was there anybody up there guarding the front and back doors against the law? A. Yes, sir.”
There was no error in the admission of this testimony for the reason that testimony (in effect the same) on this very point had been previously introduced without any objection whatever on the part of the defendant. Witness Jewel Zornes testified: “Q. Were there any men around there guarding the front and back entrances to the place? A. After they turned the heat on, when they came up there every night for a week, he put Paul Allen on the back and Pat Baker in front and he stayed in the hall in order to get us out if the law did come up there. ’ ’ Gordon v. Town of DeWitt, 106 Ark. 283, 153 S. W. 807.
Appellant next argues that the trial court erred in admitting over his objection the following question propounded to officer Gilbert and his answer: “Q. What is the reputation of that place (Pulaski Hotel) ? A. I would say it was bad. It has a reputation as a hang-out for prostitutes and also whiskey on Sunday.” This very question appears to have been decided adversely to appellant’s contention in Cole v. State, 156 Ark. 9, 245 S. W. 303. We there held (Headnote 3): “In a prosecution of a hotel keeper for receiving earnings of a prostitute rooming at the hotel, testimony showing the reputation of the hotel was admissible.”
Finally, appellant contends that the trial court erred in refusing to grant a new trial on the ground of newly discovered evidence under Ark. Stats., 1947, § 43-2203, Sub-section (6) — “Where the defendant has discovered important evidence in his favor since the verdict.” The record discloses that after the trial some of the prostitutes who testified on behalf of the State, with the exception of Betty Joe Clark and Jewel Zornes, made affidavits and testified in person when appellant’s motion for a new trial was being considered by the trial court, that their testimony given at the trial was false and was given under duress, coercion and threats. The record further reflects, however, that witnesses Jewel Zornes and Betty Joe Clark refused to recant or change the testimony which they gave at the trial. Their testimony alone, which the jury evidently believed, was sufficient to support the verdict. In Little v. State, 161 Ark. 245, 255 S. W. 892, we held (headnote): “Criminal Law — New Trial • — Recantation of Testimony. — In a prosecution for aggravated assault committed on a baby, in which there was testimony, aside from that of the child’s mother, sufficient to sustain conviction, and, in which it appeared, on defendant’s motion for new trial, based on the mother’s affidavit recanting her testimony that defendant had beaten the child, that the mother, since the trial, had come under the defendant’s influence, a denial of the motion for new trial was not error. ’ ’
There is another reason that no error was committed in this regard. In the circumstances here, in considering appellant’s motion for a new trial, it was within the trial court’s discretion to determine what witnesses told the truth while testifying, and no abuse of this discretion accorded the trial court has been shown. This court, in Tucker v. State, 176 Ark. 1206, 2 S. W. 2d 61 (not reported in Arkansas reports) held: (Headnote) — Refusal of new trial for retraction of corroborated testimony of accomplice who was state’s witness held not abuse of discretion.
“In prosecution for setting up a still, refusal of new trial for newly discovered evidence on account of accomplice’s subsequent retraction of testimony as state’s witness held not abuse of discretion, where testimony of accomplice was in part corroborated and accomplice had been confined in jail and had access to and conversations with defendant since trial; question whether or not witness told truth when on witness stand being within discretion of trial court.”
And in the body of the opinion it was said: “So it should be stated here the trial court had all sufficient reasons for overruling tlie motion on tlie ground of newly discovered evidence and was fully justified, it occurs to us, in his opinion that the witness Brannon told the truth when he was on the witness stand. At least, whether witness Brannon did swear the truth or not while on the witness stand was in the discretion of the trial court to determine under the facts of this record. We cannot say that the trial court abused its discretion in overruling appellant’s motion for a new trial.”
Finding no error, the judgment is affirmed.
DuNaway, J., not participating. | [
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Conley Byrd, Justice.
This litigation arises out of the refusal of appellants R. H. White and Mary Rose White to vacate lands belonging to appellant and cross-appellee W. H. Cason after the expiration of a written lease.
The record shows that R. H. White and his wife Mary Rose White are substantial land owners in St. Francis County. In addition to farming the 1500 acres owned by them, they, for a number of years, have rented other land including Cason’s 240 acres. Up until some seven years before this litigation, appellee W. J. Leverette had worked as a hired hand for the Whites and in that capacity had farmed the Cason land. The lease under which the Whites farmed the Cason land expired on December 30, 1970. During the spring of 1970, Cason and Leverette started negotiations which ultimately resulted in a two year written lease dated March 1, 1971. That the negotiations between Cason and Leverette had re- suited in a contract between the two during 1970, is evidenced by a letter from Cason’s counsel to White under date of December 23, 1970. Cason’s unlawful detainer action against White resulted in judgment under date of April 29, 1971, against White for possession and for damages in the amount of $3,583.33. White promptly filed a notice of appeal and filed a supersedeas bond with appellant Fidelity and Deposit Company of Maryland as the corporate surety. The Whites continued in possession after the supersedeas was filed and made and harvested a bean and a rice crop from the land, but neglected to file the appeal from the unlawful detainer action in time for this Court to take jurisdiction. The Whites satisfied the $3,583.33 judgment, returned possession to Cason and offered a $7,000.00 check in full settlement of all liability.
This litigation was commenced when Cason brought action No. 7432 against the Whites and their supersedeas surety seeking double the rental value for the time from May through December. Leverette then brought an action (cause No. 7438) against Cason claiming damages by the way of lost profits upon his rental contract. The Whites and their supersedeas surety were vouched into this action by Cason. By agreement the two actions were consolidated for trial. The jury upon interrogatories found that Cason was liable to Leverette in the amount of $10,000.00 for his loss of profits and that the Whites were liable to Cason in the amount of $7,000.00. Upon motions by Cason the trial court set aside the $7,000 verdict in favor of Cason and granted a judgment N.O.V. in favor of Cason against the Whites and their super-sedeas surety for the $10,000 Leverette verdict together with an attorney’s fee in the amount of $1,000. For reversal the several points hereinafter discussed are raised.
POINT NO. 1. The Whites and their supersedeas surety here contend that the first action is res judicata of the issues here involved and that the filing of cause No. 7432 by Cason amounts tó the splitting of a cause of action. We do not agree. In the first place the issue of double damages was raised in the first action and thus the holding in Coley v. Westbrook, 208 Ark. 914, 188 S.W. 2d 141 (1945), is not applicable. Furthermore, we held in Dover v. Henderson, 197 Ark. 971, 125 S.W. 2d 798 (1939), that the liability of a principal and surety on a supersedeas bond in an unlawful detainer action for damages subsequent to the entry of the judgment for possession should be tested by an action at law on the bond.
POINT NO. 2. The Whites contend that the court erred in not permitting them to introduce evidence to show that their refusal to vacate was not willful. They also complain that the court erred in instructing the jury that their holding over was willful. Their proffer of proof on this point concerned only evidence that was either presented or should have been presented in the first trial. The trial court properly held that these issues were concluded by the first trial.
POINT NO. 3. The Whites say that Leverette’s claim for loss of profits should have been dismissed because his proof on the issue was speculative and conjectural. We do not agree.
The record shows that Leverette was a man of litde or no formal education. He was farming 240 acres of land only one quarter of a mile from the Cason land, and, for four of the years he had worked for White, he had farmed the Cason lands. Leverette testified that as he saw the two properties they were identical. On the 48.5 acres of rice that he farmed he made 5,090.44 bushels of rice for a total value of $13,498.07. On the 175 acres of bean land he made 4,621.33 bushels for a total value of $14,336.61. He testified that his total cost of making the two crops was $9,000. Without benefit of records he itemized from the witness stand $8,100 of the costs of making the crops on the lands he farmed. He then took his yield per acre and by multiplying that against the bean and rice allotments on the Cason lands arrived at the total values he would have received had he been permitted to farm the Cason land. Leverette then arrived at what the expenses would have been in making the crop by determining his per acre cost of making the same crops on the lands he did farm. He also showed that he had acquired the necessary tractors and combines to farm the land before the trial of the first action. Not only White but each witness he called testified that Leverette was a good farmer. Leverette testified he would have made 104 bushels of rice per acre on the Cason land. The Whites admittedly harvested around a hundred bushels per acre.
Leverette testified without contradiction that there was no other land for rent at the time the supersedeas was executed. While there is other evidence on behalf of the Whites that would raise issues as to Leverette’s credibility, we cannot say here that the evidence. as to lost profits was so speculative or conjectural that a jury issue was not made. At least the evidence meets the standard laid down in Crow v. Russell, 226 Ark. 121, 289 S.W. 2d 195 (1956).
Notwithstanding that the issue of Cason’s liability for loss of profits by Leverette was submitted to the jury upon instructions submitted by White over Cason’s objections, the Whites now apparently argue that such profits are not an element of damages for the breach of lease. Cason also makes the same argument but concedes the issue is harmless or should be waived as to him if the judgment over against the Whites is sustained. Our cases on the issue have reached different results. In Thomas v. Croom, 102 Ark. 108, 143 S.W. 88 (1912), and Brown v. Bradford, 175 Ark. 823, 1 S.W. 2d 14 (1927), we held that loss profits were not an element of damages. In Harmon v. Frye, 103 Ark. 584, 148 S.W. 269 (1912), Black v. Hogsett, 145 Ark. 178, 224 S.W. 439 (1920), and Crow v. Russell, 226 Ark. 121, 289 S.W. 2d 195 (1956), we permitted the recovery of lost profits for breach of a lease agreement. Our cases in allowing or disallowing lost profits as an element of damages on a lease contract do not explain why a lease contract ought to be treated any differently from any other type of contract in which loss of prospective profits is allowed. See Williams v. Hildebrand, 220 Ark. 202, 247 S.W. 2d 356 (1952). However, we need not decide here whether lost profits are a compensable element of damages for we have consistently held that a party who requests or acquiesces in an instruction submitting a particular issue to the jury is not in a position to thereafter complain, Farmers Co-op Assn’n Inc. v. Garrison, 248 Ark. 948, 454 S.W. 2d 644 (1970). The record here demonstrates that during the trial neither White nor Fidelity raised the compensability of lost profits as an element of damages. On the other hand the record demonstrates that the issue was submitted to the jury upon an instruction requested by White and without objection on the part of Fidelity. Cason has waived the issue here by stipulation.
POINT NO. 4. The Whites argue that Leverette is not entitled to recover damages for breach of his lease convenant, because he knew White was in possession when the lease was executed. We pointed out in Morrison v. Weinstein, 151 Ark. 255, 236 S.W. 585 (1921), that the possession or holding over of a prior tenant did not prevent a recovery by a tenant against a landlord upon a contractual covenant to give possession, for the liability grows out of the covenant.
POINT NO. 5. The Whites here contend that the trial court erred in rendering judgment non obstante verdicto in favor of Leverette against White in the Leveret-te v. Cason case No. 7438.
In making this argument they contend only that the issue was a fact one for the jury. We do not agree. As pointed out in Garrott v. Kendal, 212 Ark. 210, 205 S.W. 2d 192 (1947), a landlord is acting within his rights to execute a lease to another tenant. One who, by his wrongful detention, causes the landlord to become liable to a tenant, such as Leverette, renders himself liable for the damages recovered of the landlord as a matter of law.
POINT NO. 6. Neither do we find any merit in the White’s contention that the trial court erred in setting aside the $7,000 damage verdict in favor of Cason. The proof showed that the Whites had tendered a $7,000 check in full payment of the 1971 rent. Also the trial court had instructed the jury that the Whites were liable for double the rent value but that their corporate surety was only liable for the rent value. When the jury returned the $7,000 verdict, it was reasonably apparent to the trial court that the jury had become confused between the two instructions. When we consider that the trial court not only had the advantage of seeing the parties but heard the arguments of counsel, we cannot say that he abused his discretion in setting aside the verdict.
POINT NO. 7. We find no merit in the contention that the court erred in awarding an attorney’s fee as damages to Cason in defending the suit by Leverett. See Garrott v. Kendal, supra. Neither do we find the $1,000 fee excessive for defending the action.
Affirmed.
Jones, J., dissents. | [
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Per Curiam.
On March 26,1990, a Judgment was entered in the Circuit Court of Crittenden County reflecting that the appellant Irwin Gidron had been found guilty by a jury of battery in the second degree-and murder in the second degree. He was sentenced to consecutive terms of six and twenty years imprisonment. On February 8, 1993, this court by Per Curiam Order directed Gidron’s court-appointed attorney at trial, Davis Loftin, to appear to show cause why he should not be held in contempt of this court for failure to perfect an appeal in the case. While pleading not guilty to being in contempt of this court for failure to perfect the appeal, Loftin agreed to file the record and the appellant’s brief. The issue of whether a finding of contempt is appropriate under the circumstances was deferred until the case was concluded on its merits. Gidronv. State, CR 92-1388 (March 1, 1993). Gidron has now filed a motion asking that Loftin be relieved as counsel because of his failure to perfect the appeal and further that he be held in contempt and suffer the “most harsh penalty” for placing Gidron under emotional stress. Gidron further requests that this court allow him to file his own arguments. It is not clear whether Gidron is asking to proceed pro se on appeal or asking permission to supplement whatever arguments are raised by counsel in the case.
The motion to relieve Loftin is denied. The fact that counsel may not have perfected the appeal in this case in a timely manner does not in itself demonstrate that he is unable to provide effective assistance of counsel on appeal.
Gidron’s request that he be allowed to make his own arguments to this court is also denied. If he is asking to supplement the brief filed in his behalf by counsel in this court, he has not established that the brief is deficient. An appellant is not permitted to supplement a brief filed by counsel unless he clearly shows that counsel’s brief is lacking. Wade v. State, 288 Ark. 94, 702 S.W.2d 28 (1986). Appellant has not made such a showing.
If appellant Gidron is requesting permission to pro ceed pro se in the appeal, he has not demonstrated that he is entitled to self-representation under the criteria set out by this court in State v. Van Pelt, 305 Ark. 125, 806 S.W.2d 627 (1991). We recognized in Van Pelt, that a defendant in a criminal trial has the right under the sixth amendment to represent himself when he voluntarily and intelligently elects to do so. Faretta v. California, 422 U.S. 806 (1975). We further held that a criminal appellant pursuing a first appeal as a matter of right may avail himself of the right to self-representation provided that he makes the same voluntary and intelligent waiver of counsel that a defendant at trial is required to make. See Supreme Court Rule 8(d); see also Evitts v. Lucey, 469 U.S. 387 (1985). To enter a voluntary and intelligent waiver, the appellant must indicate in his motion to proceed pro se that at the least he is aware of the right to counsel and that he understands the advantages of being represented by counsel and the disadvantages of self-representation.
It is the practice of this court to require an affidavit signed by the appellant who desires to proceed pro se which specifically sets out the waiver of right to counsel. If the appellant is incarcerated, the affidavit must bear the signature of the Attorney for Inmates attesting that the attorney has advised the appellant of the right to counsel and the advantages of counsel’s assistance and that appellant has elected to refuse the services of attorney on appeal. See Gay v. State, 289 Ark. 236, 713 S.W.2d 232 (1986).
The pro se appellant should be aware before he elects to proceed pro se that pro se appellants receive no special consideration of their argument and are held to the same standard for brief form as a licensed attorney. Wade v. State, 288 Ark. 94, 702 S.W.2d 28 (1986) (fn 1). T'htprose appellant cannot later claim that he was denied effective assistance of counsel. Faretta v. California, 422 U.S. 806 (1975).
The motion filed by Gidron contains no statement that he is fully aware of his right to representation by counsel and the disadvantages of self-representation. Furthermore, no affidavit has been received from him pertaining to waiver of counsel. Since it cannot be ascertained from appellant’s motion if he has made an intelligent waiver of his right to counsel, or even if he is indeed requesting to proceed without the services of counsel, his request is denied.
Motion denied. | [
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Butler, J.
The appellee, G. A. Hall, had for many years operated stations for pumping water for engines of the appellant company. For about a month preceding October 12, 1927, he was engaged in this business for the appellant at M'onette, Arkansas. The engine which he operated at this place was a coal oil burner, and the fuel was delivered toy the section crew at the pump house and by them carried within and placed in proper position. On the morning of the 12th of October, 1927, the section crew, composed of the foreman and four men, loaded a push cart at the depot with a case of cup grease, a thirty-gallon drum of gasoline and a one hundred and ten-gallon drum of coal oil, and pushed the car by means of the motor ear used by the section crew to a point opposite the pump house, variously estimated at being from six to nine feet from the door of said pump house. It was the purpose of the section crew to there unload and place the grease, gasoline and coal oil in the pump house for the use of the operator Hall. In the course of unloading Hall’s leg was broken by the drum of coal oil rolling against it, catching it between the drum and the door sill of the pump house. Hall was carried to a hospital in Jonesboro where he remained for about twelve days when he was transported to one of the company’s hospitals at Springfield, Missouri, at which he remained until December 20, 1927. For some days before that date he had recovered sufficiently to go about the hospital on crutches, and he was informed by the physician in charge that he might go home for the Christmas holidays. He left the hospital on December 20, and reached his son’s hoim'e near Leachville on the morning following.
On December 22,1927, Mr. Allard, the claim agent of the appellant company, visited Hall Iflor the purpose of effecting a settlement for the injury- sustained by Hall. He found Hall in bed, complaining of being exhausted by the journey'from the hospital at Springfield and feeling very unwell. Allard did not press the question of settlement, but left. Some three or four days afterward Hall visited his wife’s brother-in-law, John Dunham, at Holcomb, Missouri, and remained there for three or four days. He left in company with his son-in-law, N. D. Oxley, for the latter’s home at St. Francis, Arkansas, at which place he was on the 9th of January, 1928. On that date, the claim agent again visited Hall, and a settlement was agreed upon for the sum of $750, and Hall signed a written instrument which by its terms in consideration of the said $750’ released the appellant coim puny from all liability and from all claims for the injury which occurred in the preceding October; including those that then existed or which might thereafter develop. Upon the execution of the release Allard delivered to Hall the company’s check for $750 which Hall retained until January 18, 1928, when he deposited the same to his credit in a bank at Blytheville, Arkansas, immediately drawing out $250 in cash. After leaving the bank it was Hall’s purpose to consult with Ms physician regarding the condition of his leg, and, while going along the street, one of his crutches slipped causing him to fall breaking his leg again. He was given first aid and immediately táken to the company’s hospital at St. Louis, Missouri, where his leg was reset and treated for a time until he could again go about the building on crutches. His leg did not heal properly and was then placed in a plaster cast, and in this condition he returned to his home with instructions to return to the hospital at the end of forty days. In about forty-six days he did return, and after further examination it was determined that it would be necessary to amputate his leg, which operation was performed on July 12, 1928.
In the month, of August, 1928, he checked on the remainder of his deposit in the Bank of Blytheville for two small amounts. He drew two checks in 'September, four in October, one in December, four in January, 1929, and one in February, 1929, when there was left .in the bank of the $750 received (from the appellant company the sum of $120. On the 25th day of April, 1929, Hall filed suit against the appellant company for damages for the injury sustained on October 12, 1927, alleging that his injury was occasioned by reason of the negligence of t-he appellants employees. The appellant company answered denying negligence, and pleading as a further defense the settlement entered into January 9, 1928. To the plea of settlement the appellee replied alleging that the settlement was induced by fraud and entered into by reason of a mutual mistake, and that the same was not valid and binding. The case was presented to the jury on these issues, and from a verdict and judgment adverse to the appellant is this appeal. 'Such further (facts as are necessary for an understanding of the issues and conclusions reached will be hereinafter stated.
The three major propositions presented here, as in the court below, and urged as grounds for reversal are, first, that the evidence failed to show any negligence on the part of the appellant’s employees; second, that the release signed was fairly entered into without misrepresentation or fraud or because of mutual mistake and is valid and binding; and third, that the appellee by his act accepted the benefits of the settlement and ratified the same.
1. The testimony regarding the happening of the injury to Hall is in hopeless conflict, but, for the purpose of testing its sufficiency, the testimony of the appellee must be accepted and viewed in its moist favorable light and given its strongest probative value. All of .the testimony for the appellee was given by himself alone, which was to the effect that, as the push cart with its load approached down the railroad track and stopped at a point opposite the front door of the pump house, he entered the pump house for the purpose of stopping the engine and removing the (belt; that it was necessary to do this in order that the coal oil drum might be rolled .beyond the engine and placed upon a shelf elevated at some distance from the floor; that immediately after stopping the engine he turned facing the door and started in that direction, the section crew at that time being immediately in front of the pump house having already unloaded the case of cup grease and the smaller drum containing gasoline; that at this time the appellee and the section crew were in full view of each other. Preparing to come out of the pump- house, appellee made a step so that one foot and leg were beyond the door sill, at which time the large drum weighing 950 pounds was rolled by the section crew from the push cart catching appellee’s leg between the door sill and the drum, causing the injury. Appellee stated that his purpose for leaving the pump- house at this time was to assist the section crew in unloading the drum of oil and placing it in the pump house; that he was sixty-five years old and had been operating pump stations for the appellant company for a number of years, and that the manner in which the -oil was unloaded was -customary; that this was the first time since he had been at Monette that it was necessary to deliver any oil to his station. Appellee also stated that ‘ isidds ’ ’ were used in unloading push carts, but that they had no Skids -on this -occasion.
The evidence i-s undisputed that it was the duty of the section crew to unload the coal oil and other articles, and, after having unloaded them, to- bestow them in the proper place within the pump house, and that none of this was a part of the duty of appellee. Appellee insists that upon this state of facts a case was made fo-r the submission ■off* the question of negligence of appellant’s servants to the jury and in support of this contention has cited a number of cases, among which is that of Cruce v. Missouri Pac. Ry. Co., 167 Ark. 88, 266 S. W. 981, where the negligence alleged was the failure to furnish a safe place in which to work in that the appliance for holding up a tool box near the place where plaintiff worked was defective causing the tool box to fall, injuring the plaintiff.
In Pollock v. Hamm, 177 Ark. 348, 6 S. W. (2d) 541, the plaintiff was alleged to have been injured by the negligent operation of a motor truck. In Beal-Doyle Dry Goods Co. v. Carr, 85 Ark. 479, 108 6. W. 1053, 14 Ann. Cas. 48, cited as a case directly in point, the negligence was alleged to be the leaving open of the door of an elevator to which plaintiff had been directed for ascent to a higher floor in the building, and through which he stepped falling and injuring himself. These cases are entirely dissimilar to the instant case and can have no application to the issue here involved. The case most nearly in point cited by the appellee is that of St. Louis etc., Ry. Co. v. Burdg, 93 Ark. 88, 124 S. W. 230. In that case the cour-t said: “The evidence on the part of the plaintiff tended to prove that the end of the box car had been knocked out, and that the plaintiff and his fellow-servant were engaged in removing the brake rod. This rod was encased in the brake plate at the top of the car, and this plate was fastened to the car with screws; and when the plate was entirely loosened, it would slide down the rod. The employee on top of the oar had loosened the plate from the car by removing the screws, and was holding the plate against the side of the car while the plaintiff on the ground took hold of the lower end of the brake rod and was raising it out of the socket. The employee on the top of the car let the iron plate drop or slide down on the plaintiff while he was thus raising the rod. He gave no warning off letting the plate drop, and at the time the plaintiff was looking down while engaged in the duty of raising the rod and did not see the plate as it fell. From the facts and circumstances detailed we are of the opinion that the evidence is sufficient to sustain a finding that the fellow-servant was negligent in permitting or causing the brake plate to fall upon the plaintiff; and that at the time the plaintiff was in the exercise of due care.” That case is readily distinguishable from the case at bar. There, the two servants were engaged in a common enterprise which needed the combined efforts of both to accomplish, and the nature of the duty to be performed by the person who was injured necessarily required him to look downward at the work he was doing and from his position below the other workman and the direction in which he was obliged to look prevented him from observing the conduct of his fellow-servant who on his part could plainly see the position of the other, and, seeing this, dropped the brake plate over the top upon his fellow-servant without any warning being given. Here, the facts are entirely different. Hall was not engaged in a common enterprise with the section crew, and was in a position where he could observe all they were doing and while they could also see him, they were more directly concerned with the unloading of the coal oil and had no occasion to scrutinize Hall’s position with any great degree of attention. They were engaged in a simple operation requiring no skill or extraordinary care and while skids were sometimes, used, it was not the invariable custom nor was it necessary on this occasion. Hall had entered the pump- house when they were preparing to unload the push cart without telling them what his purpose was and there was no reason for them to anticipate that he would leave the pump house, nor was there any occasion for him to do so. Therefore, there was no reason for the section crew to warn Hall of their intention to roll the coal oil drum off the cart; nor was there an opportunity for doing so as the act of pushing the oil off the cart and that of Hall in stepping from the puimp house appear to have been simultaneous. "We are unable to see any conduct on the part of the section crew different from that of ordinarily prudent men engaged in similar work under the same circumstances. As before stated, the section crew was engaged in doing a simple piece of work such as is done continually, and one which would require no more than ordinary foresight and prudence. As has been aptly said: “A reasonable man can be guided only by reasonable estimate of probability. If men were bound to guard themselves against every risk to themselves or others which might by ingenious conjecture be conceived as possible, human 'affairs could not be carried on at all.” Anderson v. Forrester-Nace Box Co., 103 Mo. Appeals 382, l. c. 387, 77 S. W. 486.
2. The appellee contends that he was induced to sign the release under the mistaken belief that his leg would soon get well, and that this belief was induced by the statements of Dr. Cecil and the claim agent, and that this mistaken belief continued until he consulted with a physician who expressed surprise at his being out of the hospital, and when speaking of the condition of appellee's leg, said: “You haven’t got any leg.” This statement alarmed appellee especially because his leg had begun to swell and to hurt more and more severely. The appellee stated this interview with the physician occurred three or four days after the settlement of January 9 so that from that time on he was no longer deceived as to his condition, and with this knowledge retained the appellant company’s check several days longer before depositing it, drawing $250 in cash and placing $500 to his credit in the bank at Blytheville, this being-done before the time of his second injury on the same day he made the deposit. Assuming that the release had been procured as alleged by the appellee, his taking advantage of the settlement by depositing the check to his credit was a ratification of such release, for if he had been deceived he learned the truth and it was then his duty to disaffirm the contract as quickly as reasonable diligence would allow, and, having failed to do so and deriving- all possible benefit from the transaction, he can- ‘ not now be relieved as by his conduct he has waived all benefit of, and relief from, the misrepresentations. Wilson v. Strayhorn, 26 Ark. 28 ; Lamden v. St. L. S. W. Ry. Co., 115 Ark. 238, 170 S. W. 1001 ; McCormack v. Daggett, 162 Ark. 16, pgs. 22 and 23, 257 S. W. 358, and cases therein cited.
Having reached the conclusions as above stated, it follows that the judgment must be reversed, and the case dismissed. ' It is so ordered.
Mr. Justice Humphreys concurs on the ground that appellee ratified the release. | [
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Per Curiam.
Appellant’s counsel filed a brief in this • case on December 22,1982, pursuant to Supreme Court Rule 11 (h), Ark. Stat. Ann. Vol. 3A (Supp. 1981), stating that there was no merit to the appeal. Appellant Reed was notified that, if he wished to respond, he had thirty days to file a pro se brief or other response, making his brief due for filing January 21, 1983. On January 21, appellant filed the motion for extension of time to file a pro se brief which is now before us.
The motion is denied. Appellant gives no good cause for extending the time for filing his brief beyond the thirty days provided for in Rule 11 (h). Counsel’s brief covers the issues preserved at trial, and appellant has not demonstrated that there is any need to allow him more time to prepare his brief. This Court will not grant a motion for extension of time in an appeal filed pursuant to Rule 11 (h) without a clear showing that the thirty days to respond provided for in the rule is inadequate.
Motion denied. | [
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Robert H. Dudley, Justice.
In 1981 appellant entered pleas of guilty to three charges of aggravated robbery and one charge of burglary. The trial court did not accept the pleas until he was satisfied that appellant knew the nature of the charges, the minimum and maximum sentences, that he was waiving the right to a jury trial and that the plea was voluntary and made without force, threats or promises. The trial court determined the accuracy of the pleas and asked appellant if he was guilty. He responded, “Yes.” The judge then asked: “Are you fully satisfied with your attorney and the service that he has . . . and the interest that he has rendered to you?” Appellant responded, “Yes, sir.” Appellant was then sentenced to three concurrent thirty-five year terms and one concurrent twenty year term in the penitentiary. At that time appellant also executed a two page statement to his attorney which, among other things, provided:
(9) I believe that my lawyer has competently done all that anyone could do to counsel and assist me, AND I AM SATISFIED WITH THE ADVICE AND GUIDANCE HE HAS GIVEN ME.
On September 14, 1982, appellant filed a handwritten petition for post-conviction relief alleging that his imprisonment was illegal in that his confession was coerced; that his arrest was illegal; that the prosecution had failed to disclose favorable evidence; and that he did not receive effective assistance of counsel. The same trial court scheduled a post-conviction hearing pursuant to A.R.Cr.P. Rule 37, and appointed a different attorney to represent appellant. The new attorney promptly filed a two-page motion seeking to have the trial judge recuse himself because of prejudice to be proved by fact and prejudice as a matter of law. The trial judge refused to recuse himself and refused any substantive relief. We affirm. Jurisdiction of this Court is invoked pursuant to Rule 29 (1) (e).
Appellant, whose sentences have now been put into execution, asks to withdraw his pleas pursuant to A.R.Cr.P. Rule 26.1 (c) (i). Guilty pleas may not be directly withdrawn after the sentence is put into execution. Shipman v. State, 261 Ark. 559, 550 S.W.2d 424 (1977). At this stage of the proceeding a withdrawal of plea can be had only after a successful collateral attack on the conviction under a Rule 37 hearing. Shipman v. State, supra.
Appellant’s first argument under Rule 37 is that the trial judge committed error in fact by failing to recuse himself. The transcript reflects that no evidence was given on recusal. Disqualification is discretionary with the judge himself and he will not be reversed absent some abuse of that discretion. Narisi v. Narisi, 229 Ark. 1059, 320 S.W.2d 757 (1959). Since there was no evidence on the issue there was no showing of abuse of discretion and we affirm on this issue.
In the second phase of the recusal argument appellant contends that the trial judge should have recused himself as a matter of law because “the practice of having the trial judge hear Rule 37 petitions violates the spirit, if not the letter, of the Constitutional prohibition against a judge presiding in the trial where he has ‘presided in any inferior court.’” Ark. Const. Art. VII, § 20.
Here, no inferior court is involved in the context of the Constitution and the procedure does not violate the letter of Article VII, § 20. Likewise, the procedure does not violate the spirit of fairness imbued in the section. As stated in Meyers v. State, 252 Ark. 367, 479 S.W.2d 238 (1972):
[T]he appellant argues that his constitutional rights were violated because the postconviction proceeding was presided over by the same judge who imposed the original sentence. Counsel cite no authority for this contention. The point is discussed in § 1.4 of the Standards Relating to Post-Conviction Remedies (1968). That discussion first points out that the most desirable venue for a postconviction proceeding is in the court in which the challenged conviction and sentence were rendered. The discussion then continues: “Where jurisdiction is vested in the trial courts and venue is determined as in (b) above, neither a general rule favoring nor one disfavoring submission of post-conviction applications to the same trial judge who originally presided is clearly preferable.” The Commentary goes on to state: “The same judge brings to the post-conviction proceeding familiarity with the case or the applicant that may make for more efficient handling. The same judge may be more free in fact to consider or reconsider matters affecting his prior rulings than would a colleague on the bench. On the other hand, there are obvious disadvantages and risks in such a practice. There is a value in seeking determination from a mind not predisposed by prior incidents, and a significant related value that the arbiter appear not to be predisposed.”
We have recognized the need for a different presiding judge when the one who originally heard the case is biased or, for want of a record of the first hearing, must appear as a witness. Elser v. State, 243 Ark. 34, 418 S.W.2d 389 (1967); Orman v. Bishop, 243 Ark. 609, 420 S.W.2d 908 (1967). In the case at hand, however, the petitioner asserts no factual basis for his insistence that the assignment of a new judge is constitutionally mandatory. We find nothing in the record to suggest that Judge Enfield was disqualified from acting upon the postconviction petition. To the contrary, he appears to have treated the petitioner with courtesy and fairness in every particular. The present contention is therefore without merit.
When we were asked to reverse the above quoted language, we reaffirmed it. Easley v. State, 255 Ark. 25, 498 S.W.2d 664 (1973).
In the case before us there is no suggestion of prejudice in the original proceeding, nor is there any proof to suggest that the trial judge should be disqualified from acting on the post-conviction proceeding, nor is there error as a matter of law because the same trial judge presided over both proceedings.
Appellant next argues that the trial judge erred in excluding evidence by the original attorney on the issue of ineffective assistance of counsel. The issue arose in the following manner. Appellant’s original attorney was on the witness stand for direct testimony on appellant’s case-in-chief. He was asked if he filed a motion to suppress appellant’s confessions on the ground that they were taken during an unlawful arrest. The attorney responded that he had filed such a motion. The State then objected to the line of questioning and argued that, under the case of Moore v. State, 273 Ark. 231, 617 S.W.2d 855 (1981), a defendant is foreclosed from questioning his attorney’s competency when, at the time of his plea, he states that he is satisfied with the services of his attorney. The court sustained the objection. Appellant now contends the ruling was erroneous as it excluded evidence on the issue of ineffective assistance of counsel. The trial court ruling may have been erroneous, but we have no way of deciding because there were no further questions on the subject and there was no proffer of the excluded testimony. An exclusion of evidence cannot be reviewed in the absence of a proffer showing what the evidence would have been. Brown v. State, 277 Ark. 294, 641 S.W.2d 7 (1982); Rule 103 (a) (2), Ark. Unif. Rules of Evid., Ark. Stat. Ann. § 28-1001 (Supp. 1977). The point was not preserved for appeal.
Affirmed.
Purtle, J., concurs. | [
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Darrell Hickman, Justice.
We affirm this appeal from an order denying relief under A.R.Cr.P. Rule 37.
The three appellants were charged with capital murder in the shooting death of Wayne Lanier. On January 29,1986, they pled guilty to the reduced charge of first degree murder and each received a forty year sentence.
In 1987 they filed petitions for postconviction relief, asserting numerous reasons for setting aside their pleas. The issues we deal with are whether a factual basis existed for the guilty pleas, whether the pleas were voluntary, and whether Glenn Sexton was denied effective assistance of counsel. After a hearing, the trial court denied the relief requested. We affirm.
It is significant that the appellants put on no evidence at all to support their petitions. The record of the plea hearing reflects that the court asked the prosecutor what evidence the state had against the three defendants. He also asked the appellants’ attorneys if a factual basis existed and they replied that it did. But the appellants claim the court failed to comply with A.R.Cr.P. Rule 24.6 since they were not asked if they were pleading guilty because they were in fact guilty.
As we point out in Furr v. State, decided this same date, the better practice is to ask the accused if he committed the acts with which he is charged. But failure to do so will not automatically result in setting aside a guilty plea. A.R.Cr.P. Rule 24.6 contains no requirement that the accused be addressed personally.
A factual basis for the guilty pleas can be supplied at the Rule 37 hearing. Branham v. State, 292 Ark. 355, 730 S.W.2d 226 (1987). At the Rule 37 proceeding in this case, the state introduced the written statement of a witness to the crime, Charles Henson. The statement clearly implicated all three appellants.
The appellants objected to the use of Henson’s statement claiming it was hearsay. They misunderstand a Rule 37 hearing. It is not a trial. The petitioners have the burden of proof — -not the state. The petitioners offered no proof. Actually, Henson’s statement was not hearsay; it was not presented to show the truth of Henson’s accusations. It was presented to show that had the defendants stood trial, evidence was available to convict them. A.R.E. Rule 801(c). All the defendants knew of Henson’s statement and it affected their decision to plead guilty. We uphold the trial judge’s finding that a factual basis existed.
The trial judge must also determine if the plea is voluntary. He must ask the defendant whether any force or threats, or any promises, apart from the plea bargain, were used to induce the plea. A.R.Cr.P. Rule 24.5. But substantial compliance with the rule is all that is necessary. If there are deficiencies in the record of the plea hearing, they can be remedied at the Rule 37 hearing. Reed v. State, 276 Ark. 318, 635 S.W.2d 472 (1982).
At the sentencing hearing, the judge asked the defendants if they understood the nature of the charges against them and the terms of the plea bargain. Each answered yes. Before entering their pleas in court, each defendant had also signed a plea statement in which it was asked, “Are you entering your plea of guilty on your own free will and accord without anyone causing you to do so on account of any promises or threats?” All signed the statement, answering yes. At the hearing, the judge asked the men if they understood the statements and had discussed them with their attorneys. Again, they answered yes. None of this was refuted at the Rule 37 hearing.
In Simmons v. State, 265 Ark. 48, 578 S.W.2d 12 (1979), the plea statement and the appellant’s acknowledgment that he understood the charges and the plea arrangement were sufficient to show the plea was voluntary. There is an even stronger case against these petitioners.
First, the three attorneys for the petitioners, all experienced lawyers, said their initial strategy was to attack the weaknesses in the state’s case. But when the Charles Henson statement came to light, the strategy changed and the appellants decided to plead guilty to a reduced charge. They said that Henson’s statement and the desire to avoid the death penalty inspired the guilty pleas.
The burden was on the petitioners to prove their allegations for postconviction relief, and we will not overturn the trial court’s finding unless it is clearly wrong. Branham v. State, supra; Robbins v. State, 288 Ark. 311, 705 S.W.2d 6 (1986). Considering the lack of evidence presented by the appellants, we cannot say the trial court’s ruling was wrong.
Finally we consider appellant Sexton’s allegation of ineffective assistance of counsel. He has the burden of showing a reasonable probability that, but for counsel’s errors, he would not have pled guilty but would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52 (1985); Garmon v. State, 290 Ark. 371, 719 S.W.2d 699 (1986).
Sexton claimed his attorney, Franklin Wilder, was ineffective for a number of reasons. But again, he offered no evidence.
Wilder denied that he had failed to discuss the case with his client or to file motions on his behalf. He said he had talked with Sexton numerous times and filed several motions in preparation for trial. He also filed motions to secure medical treatment for Sexton who was suffering from tuberculosis.
Sexton claimed he was erroneously told his entire criminal record, including convictions more than ten years old, could be introduced into evidence should he go to trial. Wilder denied this but noted they discussed the prosecution’s possible use of more recent convictions. Wilder also denied he misinformed Sexton on parole eligibility.
Sexton claimed that Wilder failed to explain the habitual offender act to him but does not say how this affected his decision to plead rather than go to trial. The same is true of the allegation that Wilder did not understand the plea was made to first degree murder rather than capital murder. Wilder admitted he thought the charge was still capital murder. But Sexton has not shown what bearing this had on his decision to plead.
The assertion that all the attorneys worked together rather than pursuing the interest of their individual clients is not borne out by Wilder’s testimony or that of the other lawyers. Sexton claims Wilder failed to check on Charles Henson’s availability to testify at trial. There is nothing in the record to indicate Wilder had any reason to believe Henson would be unavailable.
Affirmed.
Purtle, Dudley and Newbern, JJ., dissent. See dissenting opinion in Furr v. State, No. CR 87-42, decided this date. | [
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Darrell Hickman, Justice.
David Lee Starr was sentenced to death for the murder of Mrs. Gladys Ford of Marvell, Arkansas. Mrs. Ford, age 76, was killed at her home on June 11, 1984. Starr made three detailed statements, finally admitting that he killed Mrs. Ford. There was also other evidence connecting him to the crime.
The main question raised is whether Starr’s arrest was legal and whether the exclusionary rule should be applied in this case. The trial court held that the police officers acted in good faith in arresting Starr. We agree and affirm the judgment, finding no other reversible error.
THE FACTS
On June 9,1984, the police in Marvell, Arkansas, which is in Phillips County, were contacted by Clarendon city officers in nearby Monroe County regarding Starr. He was wanted for questioning about a burglary and theft. The Marvell officers located Starr, brought him in for questioning, and asked him to empty his pockets, which he did. Starr saw an opportunity to flee and did. He was not under arrest. Warrants for his arrest for burglary and theft were issued that day in Monroe County.
On June 11 about 11 a.m., Mrs. Ford was brutally murdered outside her home. She was struck twice with a metal pipe, dragged inside her home and sexually assaulted. The house was ransacked. Her body was found by relatives shortly thereafter, and the police arrived on the scene about 1 p.m.
According to two officers, Starr became a suspect during the investigation conducted at Mrs. Ford’s home. Kenneth Winfrey, chief deputy sheriff of Phillips County, responding to a call, went immediately to the scene. He said Starr became a suspect for three reasons: Starr was seen in a nearby field near a wooded area (the field was a quarter to a half mile away); many footprints were found in that area similar to those found outside Mrs. Ford’s home; and he was informed that Starr had either done yardwork for Mrs. Ford or had gone to her home and asked about doing yardwork.
John Broome, a deputy sheriff from Phillips County, was also at the scene and said he learned the same information about Starr.
A full palm print was found in Mrs. Ford’s home, footprints were found in the yard and blood and semen samples were taken.
The police began looking for Starr in Marvell and the surrounding area and on June 13, Starr narrowly avoided capture at his girlfriend’s house. On June 14 the warrants from Monroe County for Starr’s arrest for burglary and theft were received by the Marvell Police Department. The next day, June 15, about 1 a.m., Starr was arrested at his sister’s home in Marvell. When the officers called for him to come out, he did. An officer entered the house and found a pistol behind a couch. It was later identified as being taken from the Ford residence.
Starr was taken to the Marvell jail, informed of his rights, and made a statement 23 minutes later. He was questioned largely about the pistol which he said he got from a man whose name he did not know. He denied knowing about the murder of Mrs. Ford. He was then taken to the city jail in Helena and again warned of his rights. That evening he said he wanted to add to his statement. He was taken to the scene of the crime and said that his girlfriend, Shirley Smith, actually hit Mrs. Ford. He showed the police where he pulled up an iron pipe which was used to kill Mrs. Ford. He later told them where the pipe was hidden under a dresser in the house. He said his girlfriend found the gun and he took it. He admitted he and his girlfriend intended to rob Mrs. Ford.
His third statement followed shortly thereafter. Again, he wanted to tell the police more. This time he confessed in detail to the murder. The last two statements were recorded, transcribed and entered at the trial. In his last statement, he admitted striking Mrs. Ford, raping her afterwards, ransacking the house looking for money, and finding the pistol which he stole.
The officers all agreed that Starr was initially arrested on the basis of the two warrants from Monroe County. Starr was not arrested for the murder until after he confessed. The palm print found in Mrs. Ford’s home was later identified as Starr’s and other evidence tied Starr to the murder.
THE GOOD FAITH QUESTION
It was argued below that the arrest, based on the warrants from Monroe County, was illegal and, therefore, all evidence produced as a result of the arrest must be excluded. That is the exclusionary rule. Wong Sun v. United States, 371 U.S. 471 (1963). However, the United States Supreme Court has modified the exclusionary rule if officers act in the reasonable good faith belief that a search or seizure was in accord with the Fourth Amendment. United States v. Leon, 468 U.S. 897 (1984). The court stated:
In the ordinary case, an officer cannot be expected to question the magistrate’s probable-cause determination or his judgment that the form of the warrant is technically sufficient. ‘[0]nce the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law’ .... Penalizing the officer for the magistrate’s error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations . . . . [T]he officer’s reliance on the magistrate’s probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable. . . . [I] t is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued.
That ruling has been extended to include evidence obtained by police who act in objective reasonable reliance on a statute later found unconstitutional. Ill. v. Krull, _ U.S __, 107 S. Ct. 1160 (1987). More recently an extension was made to cover the actual execution of a search warrant. Maryland v. Garrison, 480 U.S. 79 (1987).
In this case the question is: should the officers have known the Monroe County warrants were invalid because they were signed by a clerk instead of the judge? There is no evidence at all that the warrants were issued except in good faith. A pretrial motion was filed alleging no probable cause to arrest Starr “on murder.” No hearing was held on this question, counsel merely argued and the judge overruled the pretrial motion to suppress. The state said it would produce evidence that he was arrested on warrants for burglary. Later, the warrants were presented, and after the testimony of the officers, the defense argued the arrests were invalid on the basis of Stewart v. State, 289 Ark. 272, 711 S.W.2d 787 (1986). In Stewart blank warrants were signed by the judge and left with the clerk to issue. A policeman obtained such a warrant on the basis of an unsworn affidavit. We held the arrest invalid and found no evidence of any good faith. In this case the defense argued these Monroe County warrants were not signed by a judge, accompanied by an affidavit or information and, therefore, the arrest was invalid. The trial judge distinguished the Stewart case and ruled the officers in this case acted in good faith.
We have only the unrefuted testimony of the officers. It was not uncommon for the clerk to sign warrants. The warrants appeared regular to them on their face, and they acted in good faith in executing them. There was no evidence offered controverting the fact that Starr was wanted for the burglary and theft in Monroe County. That is, the argument was not that there was actually no probable cause, merely the warrants were invalid on their face and for that reason there was no probable cause. Our own rules of criminal procedure provide that “the clerk of the court or his deputy may, when authorized by the judge of that court, issue an arrest warrant upon filing of an information or upon affidavit sworn to by the complaint and approved by the prosecuting attorney.” A.R.Cr.P. Rule 7.1(c). These officers did what any ordinary Arkansas policeman would have done at the time — they arrested Starr.
The trial occurred in October, 1986. In September, 1987, the United States District Court for Eastern Arkansas decided it is illegal for a clerk to issue an arrest warrant unless a probable cause determination has been made by a neutral and detached magistrate. Fairchild v. Lockhart, 675 F.Supp. 469 (E.D. Ark. 1987). We have accepted that decision as correct. David v. State, 293 Ark. 472, 739 S.W.2d 150 (1987). These officers could not anticipate, nor should they have to, that an accepted practice would be ruled illegal — that our own rules would be declared wrong. There was no dishonest or reckless behavior on the part of any of the officers in this case; there is no evidence refuting they acted in good faith in accepting these warrants which appeared routinely issued.
It is pointed out that A.R.Cr.P. Rule 7.2(a) (v) provides that an arrest warrant will have attached to it a. copy of an information or an affidavit. It is also pointed out that Leon does not apply to facially invalid warrants. That omission is not, in our judgment, fatal. We will not assume it is customary in Arkansas that every arrest warrant have attached the information or affidavit. It is not even necessary for an officer to have an arrest warrant in his hand to make an arrest. In Woodall v. State, 260 Ark. 786, 543 S.W.2d 957 (1976), two state policemen, acting on the basis of information from the law enforcement computer indicating an out-of-state warrant, arrested a defendant. The officers had no warrant. Probable cause is evaluated on the basis of the collective information of the police. Jones v. State, 246 Ark. 1057, 441 S.W.2d 458 (1969). See also Logan v. State, 264 Ark. 920, 576 S.W.2d 203 (1979).
It is argued that State v. Anderson, 286 Ark. 58, 688 S.W.2d 947 (1985), and Webb v. State, 269 Ark. 415, 601 S.W.2d 848 (1980), require reversal of the trial court’s decision. In State v. Anderson the issue involved a search warrant issued without an accompanying sworn affidavit or sworn recorded testimony. We said “the procedure of providing an affidavit when obtaining a search warrant is so standard a practice that we cannot consider such a deficiency as falling within the purview of the good faith error.” That requirement is in the United States Constitution. The ordinary officer knows better than to seek a search warrant without any affidavit, or he should. The same is, of course, not true of an arrest warrant unless the officer executing it obtained it in bad faith. As we have demonstrated, an officer does not even have to have the warrant in hand.
In Webb we found a warrant issued by a clerk defective but upheld the arrest on the basis of probable cause. The officer had probable cause because he relied upon information that an arrest warrant was outstanding. Webb did not declare the practice illegal of a clerk issuing a warrant. See Fairchild v. Lockhart, supra, in which the court discussed the meaning of Webb.
The only objection at the trial was because the clerk signed the warrants and there were no accompanying affidavits. The only authority argued to the trial judge was the Stewart decision which he distinguished. It is now argued that even if there was probable cause, the warrants were invalid on their face and the good faith exception should not apply. The trial judge thought he was ruling on the question raised in Stewart v. State, supra. It was not until Fairchild v. Lockhart, supra, that the Arkansas legal community changed its practice. What we have is a decision by the trial court based on objections specifically made, testimony and evidence offered, and our review is limited to whether he was wrong. Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988).
There is .no evidence that the officers acted except in good faith and according to custom. No pretrial motion was filed making the argument now made on appeal. A narrow legal argument was made after the officers’ testimony. There is no suggestion raised that this was a pretextual arrest.
In Hines v. State, 289 Ark. 50, 709 S.W.2d 65 (1980), we said:
On appeal, all presumptions are favorable to the trial court’s ruling on the legality of the arrest and the burden is on the appellant to demonstrate error. . . . [A] nontechnical approach has been said to afford the best compromise for accommodating the competing interests of the individual and of society ....
Other than the technical objection to the warrants, no evidence was offered to refute the officers’ repeated testimony that Starr was warned of his rights and voluntarily confessed. So we conclude the confessions were properly admitted and the trial judge was not clearly wrong in upholding the arrest.
REMAINING ARGUMENTS
The remaining arguments are also procedural. Two prospective jurors, Mrs. Janice Aikman and Mrs. Gynith Papa, admitted they had read a brief article in a local newspaper which mentioned the fact that Starr had a prior record and had spent time in the state prison. Mrs. Aikman and Mrs. Papa both said they could set aside any information they had gained and render a fair verdict. The judge refused to excuse them for cause. Our study of the record reflects that the trial judge was careful in his judgment and both prospective jurors were questioned extensively. They were excused peremptorily by the defense.
Jurors are presumed unbiased, and the trial judge has considerable discretion in seating them. Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984); Linnell v. State, 283 Ark. 162, 671 S.W.2d 741 (1984). We have recognized that it is not practical to expect jurors to live in a vacuum. Davis v. State, 251 Ark. 771, 475 S.W.2d 155 (1972). We find no error in the court’s ruling.
The third argument is that the trial judge erred in failing to answer the jury’s questions about the meaning of life without parole, the verdict forms and what a hung jury is. We have repeatedly held that the trial court should not attempt to explain matters concerning parole. Pruett v. State, 282 Ark. 304, 669 S.W.2d 186 (1984). The court was right in not further instructing the jury on what life without parole means. It is always best to stick to the standard instructions. If they are complete, the jury can decide what to do. We find no abuse of discretion in refusing to further instruct the jury.
The fourth argument is about pecuniary gain being an aggravating circumstance in the penalty phase of the trial. This argument has been answered in Lowenfield v. Phelps, _ U.S. —, 108 S. Ct. 546 (1988) and O’Rourke v. State, 295 Ark. 57, 746 S.W.2d 52 (1988).
The fifth argument is that the court should have appointed an independent psychiatrist or psychologist to assist with the preparation of the case. The defense argues it wanted to show that Starr could not intelligently waive his rights. There is no doubt that Starr is mildly retarded. He was examined at the local mental health clinic and given an extensive examination at the state hospital. The hospital findings were: (1) mild mental retardation; (2) mixed substance abuse — continuous; and (3) antisocial personality disorder. The report concluded that Starr could understand right from wrong. The defense did call Dr. Michael Simon, a clinical psychologist at the state hospital. He testified that Starr could not read. One of the officers had testified that Starr, one time, read his rights himself. The psychologist testified that Starr was retarded and had an I.Q. of 62. The defense does not contend that the mental examination of Starr did not fulfill the requirements of Ake v. Oklahoma, 470 U.S. 68 (1985). It contends more was required in this particular case. State officials who examined Starr would have been available to answer any questions Starr had in that regard. The answers sought by Starr were simply not there. He could understand his rights even though he is mildly retarded. See White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986). His confessions reinforce this conclusion. Starr’s answers were clear, distinct and coherent. He signed his name and the officers testified it was clear that he knew what he was doing. There is no suggestion any coercion was used, direct or indirect.
The sixth argument is that the trial judge should have instructed the jury it was not required to impose the death penalty. AMCI 1509 was the instruction given, and a jury can, by finding that circumstances do not warrant the imposition of the death penalty, return a verdict of life without parole. Clines v. State, 280 Ark. 77, 656 S.W.2d 684 (1983).
The seventh argument is that the gun should have been suppressed. No pretrial motion was filed, simply an objection made when the gun was admitted into evidence. It was found in Starr’s sister’s home — not Starr’s home. Based on the evidence before the trial judge, he was justified in finding that Starr had no standing to object to the warrantless search of his sister’s home. Rakas v. Illinois, 439 U.S. 128 (1979); State v. Hamzy, 288 Ark. 561, 709 S.W.2d 397 (1986).
We are required in a death case to compare the crime with those of others receiving the death sentence. The brutal, senseless bludgeoning of Mrs. Ford and the subsequent violation of her body was especially offensive, inhuman and cruel, and unquestionably warranted the death penalty. The evidence of Starr’s guilt is overwhelming.
We have examined the record for other errors which would require a new trial and find none.
Affirmed.
Purtle, Dudley, and Newbern, JJ., dissent. | [
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Dunaway, J.
Appellant Rogers, defendant below, appeals from a verdict and judgment in favor of appel-lees, plaintiffs below, in an unlawful detainer action involving certain farm lands in Craighead County.
Rogers was in possession of the premises during the crop year 1949 as a tenant of the owner, Neal Green. Ap-pellees, who are brothers, entered into negotiations with Green in November, 1949, for the purchase of this farm. Appellees are farmers who had been renting other lands as tenants, and who desired to buy the farm now in litigation for their home. During the negotiations the question arose whether Green could deliver possession on January 1,1950, so he and the appellees went to the farm to discuss the matter with appellant. This much is undisputed, but the testimony is conflicting as to the conversation that ensued.
Green admitted that prior to the negotiations for sale, he had discussed with appellant his renting the land for 1950. The testimony of Green and the Hill brothers was to the effect that appellant was advised of the proposed sale to appellees, and that it was contingent upon their getting possession on January 1, 1950. These witnesses testified further that appellant stated unconditionally that he would move, and that they should go ahead with the sale. Acting in reliance upon appellant s assurance that he would cause no trouble, appellees purchased the land from Green on November 29, 1949. They immediately notified their landlord that they were giving-up the lands they were then farming.
On being informed that appellant would not vacate the premises, appellees on December 20, 1949, caused a notice to be served on him, demanding possession by January 1, 1950. On January 3, 1950, a three day notice to vacate was served on appellant, and on January 7, 1950, this action was begun.
Appellant answered, asserting right to possession under an oral .lease with Green for the year 1950. In their reply, appellees pleaded estoppel against appellant on the basis of his statements made to them before their purchase and upon which they relied in going ahead with the purchase and giving up possession of the lands they had been renting.
It is conceded that appellees can prevail in this lawsuit only if appellant is estopped to assert his rights under his lease with Green, it being admitted that the required notice to terminate a lease from year to year had not been given. The cause was submitted to the jury on the issue of estoppel alone.
The doctrine of estoppel in pais was early recognized in decisions of this court and is available as a defense to a claimed right either at law or in equity. See Gambill v. Wilson, 211 Ark. 733, 202 S. W. 2d 185. In the recent case of Williams v. Davis, 211 Ark. 725, 202 S. W. 2d 205, we quoted with approval, at p. 731, this statement in Jowers v. Phelps, 33 Ark. 465: “Estoppels in pais, depend upon facts, which are rarely in any two cases precisely the same. The principle upon which they are applied is clear and well defined. A party who by his acts, declarations, or admissions, or by failure to act or speak under circumstances where he should do so, either designedly, or with willful disregard of the interests of others, induces or misleads another to conduct or dealings which he would not have entered upon but for this misleading influence, will not be allowed, afterwards, to come in and assert his right, to the detriment of the person so misled.”
Although the appellant and other witnesses in his behalf testified that his promise to move from the Green farm was conditional upon a satisfactory settlement with Green, this was contradicted by the testimony of appel-lees and Green. This disputed question of fact was for the jury to determine.
Harry B. Hill, one of the appellees, testified as follows : ‘ ‘ Mr. Green said: ‘ Mr. Rogers, I have got a chance to sell this land to these boys. They want to buy it, but they won’t buy it unless I give them possession of it. I came out to see you folks and see if you will agree to move and give these boys possession of the place the first of the year.’ Mr. Rogers dropped his head down and looked at the ground a few moments and said: ‘Mr. Green, you’ve really been good to us. I don’t want to stand in the way of you selling this place. You go right ahead and sell it. I will find me a place and move to it and give possession. I won’t give you one minute’s trouble.’ Mr. Green said again ‘I didn’t know how you folks would feel. I told them I wouldn’t sell it until we knew.’ Mr. Rogers said ‘That’s all right, Mr. Green. Go right ahead and sell the place. I will find a place somewhere. I won’t give you one minute’s trouble.’ Mrs. Rogers spoke up and said ‘No; you’ve been good to us, Mr. Green. We don’t want to stand in the way of you selling the place.’ She said ‘If the place is going to sell I would rather have these bojs have it than any other.’ I spoke up and said, ‘ Cecil, you understand we are buying the place for a home to move to the first of the year?’ He said ‘Yes, sir. I’m glad to see you boys get this place. I just wish I had the money to buy it myself, you wouldn’t have had a chance at it. I can find me a place and give 3ou possession. I won’t give you no trouble.’ ”
The situation in the case at bar is similar to the one considered by this court in Trapnall v. Burton, 24 Ark. 371, where we said at p. 399: “If a person who has the claim to, or is the owner of, property real or personal, stands by and permits it to be sold, without giving notice of or asserting his right, he is estopped from setting up his claim or title, against the purchaser.” In that case Trapnall had bought certain real property at a sheriff’s sale under execution against one Hawkins and.there was pending a suit between the two. The land was desired as the site on which to erect a school.
To quote further from our opinion in that case at page 400: “When the trustees were about purchasing the west half of' the northeast quarter, . . . they knew of Trapnall’s claim, and of his then pending suit. They informed him of the intended purchase, he himself being warmly interested in the enterprise of establishing the college. They told him that they should not purchase, if he intended enforcing his claim. He told them that lie neither wanted or expected to recover the land itself, but to compel the payment of a sum of money due by Hawkins, .... He declared that he would place no obstacle in the way of the purchase. The trustees believed him, and relying on these assurances made the purchase. ’ ’
On the basis of Trapnall’s assurances that he did not intend to enforce his claim against the land, we held that there was an estoppel against a subsequent effort by his heirs to enforce it after the trustees had bought tlie property.
In the instant case the appellees went to appellant for the specific purpose of finding out whether he was claiming a lease for 1950 on the farm they wished to purchase. They informed him that they would not buy the property unless they could get possession and move onto the place on January 1, 1950. Although he did not sa) in so many words that he did not have a lease, appellant did, according to appellees’ testimony, in effect say that he was not claiming right to possession under any lease. His statements, as above set out in detail, certainly amounted to a present representation that he was not asserting any right to possession for the year 1950. Acting in reliance on appellant’s declarations, appellees to their detriment were left without a place to farm for the year 1950.
The facts in this case bring it within the rule approved by this court in Shields v. Smith, 37 Ark. 47 (at p. 53): “The doctrine of estoppel is applied with respect to representations of a party to prevent their operating as a fraud upon one who has been led to rely upon them. They would have that effect if a party, who, by his statements as to matters of fact, or as to his intended abandonment of existing rights, had designedly induced another to change his conduct or alter his condition in reliance upon them, could be permitted to deny the truth of his statement, or enforce his rights against his declared intention of abandonment.”
Appellant also argues that even if the testimony was sufficient to warrant submission of the question of estop-pel to the jury, the court’s instructions as to this issue were erroneous. The following instructions, among others, were given:
“2. It is admitted that the defendant Rogers had a contract with Green by which he was to occupy the land during 1950, but plaintiffs contend that Rogers agreed prior to the purchase of the land by the plaintiffs to surrender the possession on or before January 1st, and that he is now estopped by reason of his agreement to claim any right to possession for the year 1950.
“3. If you find from the evidence in this case that the defendant Rogers, prior to the purchase of the land by the plaintiffs, agreed unconditionally to surrender the possession thereof on or before January 1st, 1950, then your verdict in this case should be for the plaintiffs.”
A general objection was made to instruction No. 2 but no objection was made to instruction No. 3. The instruction objected to was a proper instruction, and in the absence of any objection to instruction No. 3, appellant cannot now complain that it did not fully cover all the elements necessary for the creation of an estoppel.
We liave considered appellant’s requested instructions and agreed that they were properly refused by the trial court.
Appellant’s final contention is that the trial court improperly permitted the witness Neal Green to testify concerning certain litigation between him and appellant involving cotton grown in 1949. It appears that the court allowed this testimony in explanation of references made to the litigation in the opening statement of counsel for appellant. Since appellant injected this matter into the lawsuit, he cannot complain that the court permitted Green to explain the nature of his legal controversy with his former tenant.
The judgment is affirmed and an immediate mandate ordered.
Mr. Justice L-eelar concurs. | [
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John A. Fogleman, Justice.
This appeal involves questions about the amount of holiday pay to which firemen in the City of Fort Smith are entitled, and the terms on which it is to be paid. It requires a construction of Act 132 of 1955, as amended by Act 264 of 1957, now appearing as Ark. Stat. Ann. §§ 19-2108 and 19-2109 (Repl. 1968). The action was instituted by appellees Brewer, Browder and Corbin, as a class action on behalf of all firemen of the city. They sought to recover pay for the holidays specified by the statute in lieu of additional days of vacation theretofore granted. They based their action upon an election of the firemen evidenced by a letter to the city’s board of directors, dated April 23, 1971, signed by 86 members of the fire department. On June 21, 1971, the city passed its ordinance, No. 2896, effective July 1, 1971, honoring the election. This ordinance provided for “holi day pay” by adding one day of pay to every other biweekly pay period, beginning July 1, 1971. Since there are 26 such payroll periods, this would result in payment for 13 holidays. After this ordinance was passed, appel-lees amended their complaint to challenge it on the method of calculation of a “day’s pay” utilized and the allowance of only seven days of benefits in the year 1971. Appellees contended that their work shift required that they be paid holiday pay on the basis of their pay for a 24-hour work shift and that they should be paid for 13 rather than seven holidays during 1971.
The matter was submitted to the circuit court upon a stipulation of facts. The following additional facts, among others, were stipulated:
1. Prior to 1971, the Fort Smith firemen accepted 13 consecutive days of paid vacation in lieu of holiday equalization pay.
2. All firemen receive a vacation of 15 days each calendar year with pay.
3. Those firemen who accepted a holiday vacation of 13 consecutive days prior to July 1, 1971, have no claim in the calendar year 1971 to equalization pay. Others received no vacation time for holiday equalization.
4. An ordinary day’s work for a fireman is a 24-hour period beginning at 6:30 a.m. on one day and ending at 6:30 a.m. on the next, after which the fireman is off active duty, although subject to call, for a 48-hour period between each work period.
5. The city has paid firemen on a biweekly basis, since 1967. During a biweekly pay period, a fireman will average working 4 2/3 work periods of 24 hours each and average 56 hours active duty per week or 112 hours per biweekly pay period.
6. In calculating holiday equalization pay under Ordinance No. 2896, and for all budgetary purposes, except for computation of overtime, the city divides the biweekly salary of each grade and range of firemen by 10, as the city had done for payment of non-uniformed employees and for unused vacation and sick leave time for policemen.
7. Overtime is paid to firemen on an hourly basis determined by dividing biweekly salary by 112.
8. Since 1971 was not a biennial election year, the three election days listed as holidays in the statutes were not observed in 1971, and the city contends that the firemen were entitled to pay for only 10 holidays in 1971 and other odd-numbered years.
The city administrator testified that those firemen who did not receive the full 13 days of additional paid vacation in 1971, would receive seven days of holiday equalization pay, and the city had offéred those firemen three days’ vacation in addition to the seven days’ holiday pay. He also stated that non-uniformed employees worked 80 hours during a payroll period and policemen averaged 40 hours work per week. It was his understanding that firemen could not leave the city during the 48 hours they were subject to call without calling and obtaining permission.
The trial court entered judgment, finding that: the proper method of calculating each day of holiday equalization benefit is to divide the biweekly salary by 4 2/3; Ark. Stat. Ann. §§ 19-2108 and 2109 provide for 13 days of holiday equalization benefits in each calendar year; the firemen are entitled to receive holiday equalization pay for the period of time prior to the effective date of their election in the form of pay and the city may not provide such benefits in the form of days of vacation.
We disagree with the circuit judge’s conclusions. At the outset, we should say we also disagree with appellees’ contention that these are findings of fact. The facts were undisputed, and the only questions involved turned upon interpretation of Acts 132 of 1955, as amended by Act 264 of 1957, appearing as Ark. Stat. Ann. §§ 19-2108, 2109.
Appellant’s first point for reversal is that the circuit court’s holding is erroneous, because it provides appel-lees with three days’ pay for each day of holiday benefit. It argues that the city’s method of payment is in keeping with the intent of the act. We agree with this contention. In order that our interpretation of the act be better understood, we set out the act as it appears in Arkansas Statutes Annotated, Volume 2B, with that portion added by the 1957 amendment italicized:
From and after the passage of this Act all firemen shall be paid for the thirteen [13] Arkansas legal holidays as set forth in Sec. 69-101 and 69-104 of the Arkansas Statutes. Firemen shall also be paid for any additional holidays which may hereafter be declared by legislative act. [Acts 1955, No. 132, § 1, p. 317.] Said equalization pay shall be based on each man’s daily rate of pay and in addition to the regular pay schedule. This equalization pay for the thirteen [13] holidays shall be pro-rated and paid during the regular payroll periods; except that in lieu of said pay, firemen in said cities and towns may accept paid vacations not to exceed thirteen (13) days in any one [/] year. Said paid vacations to be in addition to any vacation time to which said firemen may now be entitled under city ordinance or departmental rules or departmental policy. [Acts 1955, No. 132, § 2, p. 317; 1957, No. 264, § 1, p. 808.]
We have previously held that the legislative intention of a similar act affecting policemen was that policemen be paid additional compensation for all legal state holidays regardless of whether they actually worked on each of them. Deason v. City of Rogers, 247 Ark. 1061, 449 S.W. 2d 410. The overriding purpose of the act was expressed in the key words “equalization pay.” If it could be said that the language of the body of the 1955 Act does not clearly express the General Assembly’s intention that firemen be paid for holidays they might or might not receive, in order that they stand upon the same footing as most city employees who do not work on these holi days, but are paid, nevertheless, all doubt may be resolved by the title and emergency clause of the act, to which we resort in such cases. Cook v. Bevill, 246 Ark. 805, 440 S. W. 2d 570; Rouse v. Weston, 243 Ark. 396, 420 S.W. 2d 83; Roscoe v. Water & Sewer Improvement District No. 1, 216 Ark. 109, 224 S.W. 2d 356; Sager v. Hibbard, 203 Ark. 672, 158 S.W. 2d 922; Hollis v. McCarroll, 200 Ark. 523, 140 S.W. 2d 420; Taylor v. J. A. Riggs Tractor Co., 197 Ark. 383, 122 S.W. 2d 608. The title reads:
AN ACT Providing Equalization Pay for Firemen for the Thirteen Legal Holidays During Each Calendar Year Based On Their Daily Rate of Pay and in Addition to Their Regular Pay Schedule. Declaring an Emergency and for Other Purposes.
The emergency declared was based upon this statement in Sec. 4 of the Act:
It is necessary and essential for firemen to work on legal holidays for the protection of the public peace and safety, and adequate fire forces must be maintained at all times. On holidays firemen are denied the free vacation and leisure time enjoyed by other employees and that such equalization pay is needed by the firemen to give them more equitable and adequate support for their services and for the support of their families, and to maintain their present high standard of morale and efficiency.
If any lingering doubt be left, it was completely resolved by the 1957 amendment which permitted the firemen to accept paid vacations not to exceed 13 days in any one year in lieu of “equalization pay.” Clearly, acceptance of the paid vacation time would guarantee that every fireman would receive as much time off work for holidays, without loss of pay, as other city employees. It would be rather odd to suggest, as appellees do, that the legislature somehow expected to equalize the position of the firemen of Fort Smith by giving them a “daily rate of pay” which resulted in their being virtually three times as well provided for in this respect as other city employees, or that the firemen of any city whose working periods for firemen are arranged as those in Fort Smith should be so much better provided for than those in cities where work shifts may be on a 12- or eight-hour basis. It also seems most illogical to ascribe to the General Assembly an intention that the firemen in any city, by merely accepting vacation with pay, would receive approximately one-third as much as they would receive if they took the benefit in the form of “equalization pay.” We can only assume that the legislative branch meant to “equalize” so far as possible. Even though it is not for us to pass upon the logic or wisdom of a clearly expressed legislative intention, we should never construe an act, which does not state the intention in clear and unambiguous terms, to reach an illogical result, when it can be construed to reach a logical one. Warfield v. Chotard, 202 Ark. 837, 153 S.W. 2d 168; Ledbetter v. Hall, 191 Ark. 791, 87 S.W. 2d 996; LaFargue v. Waggoner, 189 Ark. 757, 75 S.W. 2d 235; 2A Sutherland, Statutory Construction (Fourth Edition) 37, § 45.12; 50 Am. Jur. 385, Statutes, § 377; 82 C.J.S. 540, Statutes, § 316. See also, Arkansas State Highway Commission v. Mabry, 229 Ark. 261, 315 S.W. 2d 900; Watson v. Harper, 188 Ark. 996, 68 S.W. 2d 1019; Wilson v. Biscoe, 11 Ark. 44.
Still another approach to ascertainment of legislative intent, when ambiguous, is to construe a new act in the light of analogous acts or acts in pari materia. Indian Bayou Drainage District v. Dickie, 177 Ark. 728, 7 S.W. 2d 794; Wilkin v. Special School District, 181 Ark. 1029, 29 S.W. 2d 267; Cooper v. Town of Greenwood, 195 Ark. 26, 111 S.W. 2d 452; Prewitt v. Warfield, 203 Ark. 137, 156 S.W. 2d 238; Graves v. Burns, 194 Ark. 177, 106 S.W. 2d 602; Connelly v. Lawhon, 180 Ark. 964, 23 S.W. 2d 990. See also, Smith v. Page, 192 Ark. 342, 91 S.W. 2d 281; Golden v. McCarroll, 196 Ark. 443, 118 S.W. 2d 252; State v. Fidelity & Deposit Company of Maryland, 187 Ark. 4, 58 S.W. 2d 696; Chandler v. Chandler, 211 Ark. 332, 200 S.W. 2d 508; Ross v. Rich, 210 Ark. 74, 194 S.W. 2d 297. We have said that, in construing any statute, the court should place it beside other statutes relevant to the subject and give it a meaning and effect derived from the combined whole. Boone County Board of Education v. Taylor, 185 Ark. 869, 50 S.W. 2d 241.
For the purpose of construction of such a statute, resort may be had to its relation to other laws. Ledbetter v. Hall, supra. Ark. Stat. Ann. § 19-2105 is the statute providing for vacations for firemen. It requires that each employee of a city fire department “be granted an annual vacation of not less than fifteen [15] days with full pay.” When this act is considered along with the optional additional 13 days’ vacation in lieu of “equalization pay,” the intention that this pay be consistent with that provided for vacations, regular or additional, seems even clearer. It is at least clear that the legislature recognized that there was a different standard as to vacation pay, when by Act 241 of 1971 it brought firemen into the purview of the act theretofore requiring a uniform basis for accumulation of sick leave for policemen. See Act 393 of 1969 and Ark. Stat. Ann. §§ 19-1718 — 1720. When this was done, the firemen were permitted to accumulate sick leave on the basis of “working days,” which were specifically defined by the amendatory act as “a tour of duty.” If the General Assembly had intended for the act in question to apply in the same manner, it would have defined its terms as it did in Act 241 of 1971, or it would have used the latter act as a vehicle for amending Ark. Stat. Ann. §§ 19-2108, 2109.
When all factors are considered, it seems obvious to us that the adjective “daily” modifying “rate of pay” in the act in question should be applied with the same connotation as the noun “days” in the same section of the act. The mere fact that the city has endeavored to simplify administrative pay calculations for budgeting and payroll purposes by defining a day’s pay as one-tenth of the biweekly pay instead of one-fourteenth to conform with the practice as to non-uniformed employees is not so inconsistent with the construction for which appellant contends to be given serious consideration in interpreting the governing act. Neither do we think it reasonable or logical to think the legislature intended that the city could increase or decrease holiday equalization pay by the simple expedient of changing the work shifts of firemen.
Consequently, we cannot accept appellees’ contention that in the context of the act in question, “a man’s daily rate of pay” is based entirely upon the 24-hour work shift, to the exclusion of the 48 hours between shifts, when the fireman is off duty, but subject to call. Our construction makes the terms of the act consistent with one another and with other legislation. It is also consistent with the rules of statutory construction. The construction urged by ap-pellees and adopted by the trial court is not productive of the degree of consistency desirable in construing statutes.
As a second point, appellant contends that the trial court erred in holding that firemen should be paid for 13 holidays in calendar years in which no elections are held, apparently because Ark. Stat. Ann. § 19-2108 provides that “all firemen shall be paid for the thirteen (13) Arkansas legal holidays as set forth in §§ 69-101 and 69-104.” Yet, three of these days are election days, which do not occur in odd-numbered years. Here again, we believe the circuit judge overlooked the purpose and policy of the acts, i.e., to equalize the situation of the firemen with that of employees who did not work on the specified holidays but were still paid as if they had. There is no intimation that any of these employees is not required to work in odd-numbered years on days which would have been election days in an even-numbered year. The result reached by the circuit court would result in an over-compensation rather than an equalization, because other city employees would be compensated for only 10 holidays in odd-numbered years rather than 13. The argument that firemen are to be paid for 13 holidays in every year overlooks the fact that they are to be paid for the 13 set forth in specific statutes and three of these are election days that occur biennially instead of annually. There is no indication that firemen are to be paid for holidays that do not occur. Furthermore, the language in § 19-2109, that firemen “may accept paid vacations not to exceed thirteen (13) days in any one [1] year” should be a conclusive indication that they might be paid for less but not more.
Both parties refer to Deason v. City of Rogers, 247 Ark. 1061, 449 S.W. 2d 410, on this point, but it really has no significance here. As appellees point out, this issue was not before the court in that case. It hardly could have been for the case reached this court on a demurrer to a complaint of a policeman seeking pay for the IB holidays whether he worked or did not work on the holidays. The case was remanded, and there is no holding either express or implied that the policeman was entitled to pay for 13 days each year.
The fact that Fort Smith previously allowed 13 days of vacation each year as equalization has no real bearing on the question, because an administrative or legislative determination by the officials of one city certainly is not to be accorded any significant weight in construction of a statute governing hundreds of cities and towns. There is no maximum limit on the number of days of vacation a city may allow firemen.
We likewise agree with appellant that the city is not required to give holiday equalization pay for 13 days to those firemen who did not receive paid holiday vacations prior to July 1, 1971. The circuit court held that the city could not provide for these benefits by granting days of paid vacation. Yet, some of the firemen had already been granted 13 days of paid vacation. The city provided for equalization pay for seven holidays to those who had not. The mid-year election made by the firemen would certainly be disruptive to orderly administration of the department’s financing, to say the least. But the city does not question the right of the firemen to make a new election at the time they did. Consequently, we do not have to be concerned with that question. Yet, it seems that, insofar as possible, the city could take steps to make the election applicable only for one-half the year and allow paid vacation time for all holidays to be considered in excess of the seven for which pay is being added.
We cannot agree that this issue is not before the court. It is clear that the circuit judge thought it was. In their complaint appellees asked that those firemen who had not been given 13 additional days of paid vacation be awarded a judgment in the amount of equalization pay due them. Evidence was given on the subject, without objection by appellees. The trial court in its judgment stated the opposing contentions of the parties on this issue, and we find to objection raised to this statement.
The judgment is reversed.
Byrd, J., dissenting.
The city administrator explained that overtime was calculated on an hourly basis, because a fireman’s overtime work might be less than a full day. | [
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Per Curiam.
On March 12,1993, appellee filed a motion to supplement the record in this matter, and after the ten days expired for response, the motion was submitted to the court for action on March 22, 1993. Mandate had issued in this case on March 15, 1993.
This court previously considered earlier motions by appellee to suggest disqualification of the court’s members and for a rehearing. Those motions were denied on February 22,1993. On this same date, appellee filed a motion to stay mandate, which was also denied on March 15, 1993 — the date mandate issued.
This court’s jurisdiction in this cause concluded on March 15, 1993. Appellee cites no authority under which the court can act in this cause, and we are aware of none. Because the court has no further jurisdiction, appellee’s motion to supplement the record is denied.
Holt, C.J. and Dudley, J., not participating. | [
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Robert H. Dudley, Justice.
The petitioner was admitted to the Bar of Arkansas in 1980. In 1983 and 1984, while a practicing attorney, petitioner committed a number of felonies. He was charged by the United States Attorney in a three-count indictment filed in United States District Court. He was tried in 1985, and the jury found him guilty on all three counts of the indictment. He was sentenced to three years in federal prison on each count and fined $2,000 on each count. He petitioned this court and asked to unconditionally surrender his license in order to avoid disbarment. On December 8,1986, by per curiam order, this court unconditionally accepted the surrender of his license.
Petitioner was discharged from parole on October 9, 1990. Three months later, on January 2, 1991, he filed a petition with the Board of Law Examiners asking for reinstatement to the Bar of Arkansas. That Board determines whether, and on what conditions, one should be readmitted to the Bar. The Board held a hearing and, by a divided vote, denied the petition for reinstatement. The conclusion of the Board’s finding is as follows:
Mr. Anderson is far along in the rehabilitation process and that he has met all the technical requirements for admission, however, his felony conviction [s] singularly outweighs the positive evidence of the record; that Mr. Anderson has not met his burden of establishing eligibility for reinstatement and his petition is denied.
The petitioner appeals from the Board’s ruling. We affirm the ruling.
The facts involved in the crimes for which petitioner was convicted in federal district court are significant to our holding, and, therefore, the counts of the indictment are quoted in full:
Count I.
On or about November, 1983 and continuing through the end of February, 1984, SAM ANDERSON, JR., the defendant herein, did knowingly and wilfully combine, conspire, confederate and agree with Roger Clinton to possess with intent to distribute cocaine, a Schedule II controlled substance, in violation of Title 21 United States Code, Section 841(a)(1).
The following overt acts were committed in furtherance of the conspiracy:
1. In November, 1983, SAM ANDERSON and Roger Clinton discussed the purchase and distribution of cocaine in the Hot Springs area.
2. In November, 1983, SAM ANDERSON paid Roger Clinton $4,000.00 for cocaine.
3. On or about November 21, 1983, SAM ANDERSON paid $4,000.00 to Roger Clinton and received approximately two ounces of cocaine.
4. On or about December 11, 1983, Roger Clinton travelled to New York City to purchase cocaine for SAM ANDERSON.
5. On or about December 15, 1983, SAM ANDERSON paid Roger Clinton approximately $6,000.00 for cocaine.
6. On or about December 19, 1983, SAM ANDERSON paid Roger Clinton $4,000.00 for cocaine.
7. In January, 1984, SAM ANDERSON paid Roger Clinton approximately $4,000.00 for cocaine.
8. On or about January 19,1984, Roger Clinton flew to New York City to purchase cocaine for SAM ANDERSON.
9. On or about January 22, 1984, SAM ANDERSON paid Roger Clinton approximately $10,000.00 for cocaine.
10. In February, 1984, SAM ANDERSON and Roger Clinton discussed the purchase of 10 to 15 ounces of cocaine.
11. On or about February 24, 1984, Roger Clinton picked up approximately nine ounces of cocaine from Maurice Rodriguez for delivery for SAM ANDERSON.
All of which acts were in furtherance of the conspiracy and in violation of Title 21 United States Code, Section 846.
Count II.
Beginning in early May, 1984, and continuing through the end of June, 1984, in the Western District of Arkansas, Hot Springs Division, SAM ANDERSON, JR., the defendant herein, did knowingly and wilfully combine, conspire, confederate and agree with Maurice Rodriguez to possess with intent to distribute cocaine, a Scheduled II controlled substance, in violation of Title 21 United States Code, Section 841(a)(1).
The following overt acts were committed in furtherance of the conspiracy:
1. On or about the middle of May, 1984, SAM ANDERSON and Maurice Rodriguez discussed the purchase of cocaine.
2. On or about May 15, 1984, Maurice Rodriguez received $8,000.00 from SAM ANDERSON to purchase cocaine.
3. On or about May 16, 1984, Maurice Rodriguez travelled to New York City.
4. On or about May 23, 1984, Maurice Rodriguez returned to Hot Springs from New York City.
5. On or about May 23, 1984, Maurice Rodriguez delivered approximately four ounces of cocaine to SAM ANDERSON.
6. On or about June 4, 1984, SAM ANDERSON gave a German license tag to Maurice Rodriguez to use on a vehicle driven by Rodriguez to Arkansas.
All of which acts were in furtherance of the conspiracy and in violation of Title 21 United States Code, Section 846.
Count III.
On or about June 20,1984, in the Western District of Arkansas, Hot Springs Division, SAM ANDERSON, JR., knowingly and intentionally did unlawfully distribute cocaine, a Schedule II controlled substance, in violation of 21 United States Code, Section 841(a)(1).
Another fact that is significant to the holding is that, commencing in 1982, the petitioner served as Roger Clinton’s attorney and represented him in a number of matters.
Rule 17 of the Rules of Professional Conduct provides that if a member of the bar is “convicted of a felony . . . under the laws ... of the United States,” disciplinary action, including disbarment, may be taken. Rule 7(d) of the Rules of Professional Conduct provides that a member of the bar may voluntarily surrender his or her license to practice law. Such surrenders of a license are absolute. In re Webster, 307 Ark. 40, 816 S.W.2d 612 (1991). Petitioner unconditionally surrendered his license “to avoid unnecessary proceedings,” and we unconditionally accepted petitioner’s surrender of his license.
This court has the inherent power to discipline an attorney. Hurst v. Bar Rules Comm., 202 Ark. 1101, 1108, 155 S.W.2d 697, 701 (1941). In addition to this court’s inherent power, Amendment 28 to the Constitution of the State of Arkansas expressly gives this court the authority to regulate the practice of law. The constitutional amendment was adopted in 1928 to make it absolutely clear that this court could make rules regulating both the practice of law and the conduct of attorneys. The purpose of the amendment was to protect the public and to maintain the integrity of the courts and the honor of the profession. An attorney’s client often entrusts his property, or his liberty, or possibly his life, to the attorney. A position of trust, if not an actual fiduciary relationship, often exists. It is the responsibility of this court to see that the public can maintain that trust in the Bar. We have said the “honor of the profession” is one of the considerations in determining readmission. Hurst v. Bar Rules Comm. The practice of law is a privilege, not a right. In re Petition for Reinstatement of Lee, 305 Ark. 196, 806 S.W.2d 383 (1991). Once a lawyer has lost his license to practice law, either through surrender or disbarment, there is a presumption against readmission. Hurst v. Bar Rules Comm.
The protection of the public and the honor and integrity of the profession have long been the principal criteria in determining whether a person should be admitted or readmitted to the bar. In the case of In re Petition of Shannon for Readmission to the Bar of Arkansas, 274 Ark. 106, 108-A, 621 S.W.2d 853, 855 (1981), we said: “The overriding considerations on the question of readmission are the public interest, the integrity of the bar and the courts with due consideration to the rehabilitation of the petitioner with respect to good moral character and mental and emotional stability.” (Emphasis added.)
Petitioner first argues that the ruling of the Board of Law Examiners is clearly against the preponderance of the evidence. Petitioner’s argument is primarily based upon his rehabilitation, but it does not give sufficient weight to the overriding considerations of the public interest and the integrity of the Bar. The finding of guilt on the three counts of the federal indictment demonstrates that the criminal conspiracies entered into by petitioner were lengthy and complex. They were planned and designed by a member of the Bar and were committed with full intent to break the law. Even worse, the petitioner, who was a member of the Bar, entered into a criminal conspiracy with one of his clients, and did so while he was serving as the client’s counsel. Finally, the distribution of cocaine is a most hurtful offense.
As previously set out, the overriding considerations for readmission are the public interest and the integrity of the bar. It is indubitable that public confidence in the bar, as well as the integrity of the bar, would be diminished by the readmission of a lawyer who had been convicted of entering into a criminal conspiracy with his client, just as it would be diminished by the readmission of a lawyer who had been convicted of distributing cocaine. Even if confidence in the Bar were not harmed at the local level by this case, and even if the integrity of the bar at the local level were not diminished by this case, both would be subsequently damaged at the state level because the Board of Law Examiners would be obliged to follow the precedent and allow readmission to criminals who had held a law license and who had been convicted of crimes involving their clients.
On the other hand, petitioner has made remarkable progress in his rehabilitation and is to be commended for his efforts. A clear majority of the members of the local bench and bar have given statements that petitioner has acted in an exemplary manner since his discharge from prison, and they ask that he be reinstated, as do a number of local and locally elected state officials and civic and business leaders. However, we give only due consideration to rehabilitation. The overriding consideration is the public trust and the honor of the profession. In sum, under our established standards for readmission, we cannot say the weighing of factors and ultimate ruling of the Board was erroneous.
The petitioner next argues that the Board of Law Examiners erred in concluding that a felony conviction is a bar to reinstatement. We summarily dismiss the argument because a felony conviction, in itself, will not always prevent reinstatement, and the Board did not so hold. The Board held that the felonies involved in this case and the concomitant public interest and honor of the profession outweigh the petitioner’s good efforts at rehabilitation.
The petitioner next contends that three other cases stand in contrast to a refusal to reinstate him, and on a comparative basis he ought to be readmitted. The argument is without merit for two reasons. First, each case must stand on its own, and second, the cases used in comparison are inapposite. The first of the allegedly comparative cases cited by petitioner involved a member of the Bar who was arrested for possession of a controlled substance, felony hit and run, driving while intoxicated, reckless driving, and refusal to submit to urine analysis. He surrendered his license, but there is no evidence that he was ever convicted of any of the charges, not even evidence that he was convicted of a misdemeanor. He was allowed readmission by the Board of Law Examiners.
The second case did not involve either a surrender of a license or a disbarment proceeding. It did not involve an application for reinstatement to the Board of Law Examiners. Rather, it involved a disciplinary proceeding before the Committee on Professional Conduct. In that case a judge was charged with a misdemeanor for contributing to the delinquency of a minor for soliciting sex with a juvenile defendant. The Committee on Professional Conduct suspended that member of the Bar from practice for one year “for a violation of Rule 8.4(b) and 8.4(d) of the Rules of Professional Conduct.” Without a license that person was no longer eligible to serve as a judge, and therefore, he could no longer serve in that office. The third case also involved a disciplinary proceeding before the Committee on Professional Conduct and was not a proceeding before the Board of Law Examiners. In that case the Committee on Professional Conduct suspended the attorney from the practice of law for sixty days for not maintaining a trust account of his client’s money separate from his own accounts and for using his client’s money. Again, none of these three allegedly comparative cases involved a conviction for the commission of a felony, especially one involving a client.
The petitioner’s final argument involves a pardon. On November 5, 1991, eleven months after he filed his petition for reinstatement, the then Governor of the State, Governor Clinton, issued a proclamation which the petitioner labels a pardon. He argues that it was a violation of the separation of powers doctrine for the Board to refuse to recognize the legal effect of the Governor’s pardon of the felony convictions. We could summarily dismiss the argument because the proclamation is not a full pardon, but rather it is only a pardon conditioned upon “a federal removal of disabilities,” and there is no evidence that such federal action has taken place. Similarly, we might decide the issue on the basis of whether a governor of a state might pardon one of a federal crime, but instead we choose to go to the merits of the issue. We do not have a case of our own that is squarely on point, but we have two cases that give guidance, and other states have decided cases that are on point.
First, we address our cases that give us some guidance. In State v. Carson, 27 Ark. 469 (1872), we considered whether a pardon operated to restore one convicted of a felony to the office of probate and county judge despite the constitutional and statutory provisions barring felons from holding office. We said that “such judicial officer forfeits his office by conviction of a felony and that no pardon can restore him.” Id. at 471. In State v. Irby, 190 Ark. 786, 81 S.W.2d 419 (1935), we had a fact situation almost identical to Carson. We wrote:
While a pardon has generally been regarded as blotting out the existence of guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense it does not so operate for all purposes, and as the very essence of a pardon is forgiveness or remission of penalty, a pardon implies guilt, it does not obliterate the fact of commission of the crime, and the conviction thereof; it does not wash out the moral stain; as has been tersely said it involves forgiveness and not forgetfulness.
Id. at 797, 81 S.W.2d at 424 (quoting 46 C.J. 1192).
The state constitution places the duty and responsibility upon this court to determine who shall be licensed to practice law. Other states have this same separation of powers. In Hankamer v. Templin, 187 S.W.2d 549, 551 (Tex. 1945), the court wrote, “[T]he governor can forgive the penalty but he has no power to direct the courts to forget the conviction.” Regarding the respective powers of the three branches of government, the court in Scott v. Leathers, 52 S.E.2d 40, 43 (Ga. 1949), wrote, “[J]ust as the legislative may not by statute defeat the constitutional power of the executive to dispense clemency, neither the legislative or the executive may defeat the judiciary’s inherent power over attorneys at law.” In re Lavine, 41 P.2d 161, 164 (Cal. 1935), the court wrote, “[T]he pardoning power does not extend to the reinstatement of an attorney excluded from the practice of law on the order of a court.” We agree. The power of the executive branch to grant pardons does not limit the constitutional power of this court to regulate the legal profession.
In conclusion, the Board of Law Examiners found that petitioner’s rehabilitative efforts were outweighed by his commission of the three felonies and the concomitant detrimental effect his readmission would have both on the public trust of the Bar and on the integrity of the Bar. That holding is not erroneous, and is, accordingly, affirmed.
Affirmed.
Holt, C.J., and Hays, J., dissent. | [
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Smith, J.
The Lincoln County Bank closed its doors, and its assets are now being administered by the State Bank Commissioner, who filed this suit November 26, 1929, to enforce the collection of a note dated January 9, 1923, maturing November 15, 1923, payable to the order of the insolvent bank. The note was offered in evidence, and its execution by appellee White was admitted, and on its back the following indorsements appear:
“Dec. 31,1924, Paid on this note by R. L.
Calhoun .........................................................................$300.00
2/5/25 paid on note...................................................... 2.94”
W. R. Alsobrook testified that he was the cashier of the Bank of Star City, which institution was acting as liquidating agent for the bank commissioner in winding up the. affairs of the Lincoln County Bank; that he “judged” the credit of $2.94 was the amount of the deposit of the maker of the note with the Lincoln County Bank at the time it was taken over by the bank commissioner. This, however, was a mere surmise, and the witness did not state it as a fact, nor did he testify that White was a depositor of, or had any balance to his credit with, the Lincoln County Bank when it failed.
As to the apparent payment of the $300' on the note, the testimony is as follows: H. D. Palmer, called as a witness by the plaintiff, testified that he had been the cashier of the Lincoln County Bank, and had indorsed the credit dated December 31, 1924, under these circumstances. He had sent White word to pay the note or “else bring the property in we had a mortgage on,” given to secure the note, as it was his intention to sell the mortgaged property; and apply the proceeds of the sale on the note, whether White was willing or not. R. L. Calhoun, upon whose farm White lived as a sharecropper, came to the bank and wanted to buy the property mortgaged, and they agreed upon $300 as its price. Calhoun gave a note to the bank for this sum, due the next fall, which was paid at its maturity, and the $300, the proceeds of this note, were credited upon the note in suit.
White testified that he told 'Calhoun about the message from Palmer, and Calhoun said he would try to buy the mortgaged property from the bank, and Calhoun later told him he had bought it. White knew, of course, that the mortgaged property was worth much less than the mortgage debt. The mortgaged property appears to have consisted of live stock, probably mules, for, on his cross-examination, White testified as follows: “Q. You turned the stuff over to him (Calhoun) ? A. He already had it. Q. You had already turned it over to him (Calhoun) ? A. No, sir. He worked the stuff that year for feed.” White further testified that Calhoun told him later that he had “bought the stuff.”
Th§» transaction just detailed was, in effect and in fact, a foreclosure of the mortgage, with the public sale waived which the mortgage, no doubt, provided for, and was not such a voluntary payment as the law requires to toll the statute of limitations.
The law is well settled that a voluntary part payment arrests the running of the statute of limitations, and forms a new period from which the statute must be computed. This results from the fact that a voluntary partial payment is a recognition of the validity of the debt, from which a promise to complete the payment is implied in law. But, as was said by Cockrill, C. J., in the case of Wilson v. Pryor, 44 Ark. 532 : “The presumption of a deliberate promise to pay the residue, which the fact of payment raises, can arise only from what would be deemed an actual part payment.”
The court below found that there was no proof of an actual voluntary part payment by White, and dismissed the complaint for that reason, and we concur in that view.
The fact of a part payment, which was relied upon to stop the running of the statute of limitations, was denied by White, and the burden was therefore upon the plaintiff to prove that fact. Simpson v. Brown-Desnoyers Shoe Co., 70 Ark. 598, 70 S. W. 305 ; Johnson v. Spangler, 176 Ark. 328, 2 S. W. (2d) 1089, 59 A. L. R. 899 ; Slagle v. Box, 124 Ark. 43, 186 S. W. 299 ; Clark v. Lesser, 106 Ark. 207, 153 S. W. 112.
Certainly the indorsed credit of $2.94, of itself, did not suffice. There was no proof whatever by what authority this had been done. Desha Bank & Trust Co. v. Quilling, 118 Ark. 114, 176 S. W. 132, L. R. A. 1915E, 794. Indeed, it was a mere surmise on the part of Alsobrook that White had any sum of money to his credit with the Lincoln County Bank when it closed its doors. Nor does the $300 credit suffice. White had no volition in this matter. The transaction was, as we have said, a foreclosure of the mortgage, which Palmer testified was done without regard to White’s wishes.
In the note to the case of Howard v. Pritchett, 207 Ala. 415, 92 So. 782, 25 A. L. R. 55, the annotater says: “With the exception of one case in Missouri, since repudiated, the authorities uniformly support the doctrine that the application to an indebtedness of the proceeds arising from the enforcement of a mortgage or deed of trust does not interrupt the running of the statute of limitations.” The annotater cites numerous cases supporting his note, but did not, of course, cite our case of Meisner v. Pattee, 170 Ark. 217, 279 S. W. 787, as the opinion in that case had not then been delivered. But in the Meisner case, supra, we expressly approved the annotater’s statement of the law. We there said: “It is settled by practically unanimous authority that the application of the proceeds arising from the foreclosure of a mortgage does not interrupt the running of the statute of limitation. Note to 25 A. L. R. 62.”
The judgment of the court below is correct, and it is therefore affirmed. | [
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Frank Holt, Justice.
The issue in this case is whether grandparents, who have court ordered visitation rights, are entitled to notice of an action to adopt their minor grandson, Kenneth Ray Meekins. The Browns are the parents of the natural mother of Kenneth. Kenneth’s mother died in July, 1978. The natural father married appellee Doreen Laverne Meekins in May, 1979. In 1980 a dispute arose concerning visitation by the Browns with their grandson, resulting in the chancellor entering a decree fixing the visitation rights as authorized by Ark. Stat. Ann. § 57-135 (Supp. 1981).
The Browns, who live in California, where Kenneth’s mother lived and died, were not given notice of the adoption proceedings. Their attorney learned of the proceedings when he was in the courthouse on the day of the adoption hearing. He made an appearance at the commencement of the hearing and orally moved for a continuance and in the alternative, he asked for the right to intervene immediately. Both motions were denied “on the basis that under the statute no notice is required for this hearing as to the people suggested .... ” The adoption was granted that day and the Browns appeal, asserting the probate judge erred in denying their motion to intervene. We agree.
In Quarles v. French, 272 Ark. 51, 611 S.W.2d 757 (1981), we held that grandparents who have been granted visitation rights pursuant to § 57-135 have an interest in adoption proceedings sufficient to entitle them to intervene for the limited purpose of offering such evidence as may be relevant to the issue of whether the proposed adoption is in the best interest of the child. There, however, the grandparents were given timely notice of the adoption proceedings, so we did not reach the issue of whether they were constitutionally entitled to notice. Since, here, the court’s ruling was predicated on the assumption that notice is not required, this issue is squarely presented.
The logical implication of our decision in Quarles is that grandparents who have court ordered visitation rights, as here, are constitutionally entitled to receive notice of an adoption proceeding. Otherwise, the right to intervene in the adoption action is meaningless as the instant case illustrates. Here, the grandparents would not have known of the proceeding but for the happenstance of their attorney being in the courtroom on the day of the hearing and noticing the court’s docket of cases for that day. Obviously, no time was available for preparing an adequate motion for intervention and preparation for the hearing. Furthermore, in Quarles we relied upon Armstrong v. Manzo, 380 U.S. 545, 85 S. Ct. 1187, 14 L.Ed.2d 62 (1965), where the right of the natural father to receive notice was recognized. We could not rely upon Armstrong for our holding in Quarles that grandparents who have been awarded visitation rights also have the right to intervene in adoption proceedings, without also recognizing the concomitant right that adequate and timely notice must be given to such grandparents. Any other result is inconsistent with due process which, at the very least, requires a reasonable opportunity to be heard. In Armstrong the Supreme Court reiterated its well-known and oft-repeated holding that “[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” This rule is applicable here by virtue of both the Fourteenth Amendment, Constitution of the United States, and Art. 2, § 8, Constitution of Arkansas (1874).
Reversed and remanded.
Purtle, J., not participating.
A.R.C.P., Rule 7 (b) (1) and reporter’s note 5. | [
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Per Curiam.
On December 20, 1982, we denied the petition of Clay Anthony Ford for relief pursuant to A.R.Cr.P. Rule 37.2 and for stay of execution, which is set for January 6, 1983. Petitioner attempted to file an amendment to his petitions on December 22,1982. His amendment was untimely because we had already ruled on the original petition. Furthermore, the proposed amendment does not assert any grounds which were not treated on direct appeal. The amendment, like the original petition, does not allege grounds upon which relief could be granted and is without merit.
Amended petition dismissed.
Petition for stay of execution denied. | [
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Per Curiam.
Appellant, Leonard E. Ridenhour, by his attorney, has filed for a rule on the clerk.
His attorney, Wayland A. Parker, admits that the record was tendered late due to a mistake on his part.
We find that such an error, admittedly made by the attorney 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, 265 Ark. 964.
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Darrell Hickman, Justice.
This is a divorce case certified to us by the Court of Appeals because of a question of the sale of corporate property to satisfy personal debts. As it turns out that is actually not a significant issue in this case. But we have decided to dispose of the case in the normal course of review rather than return it to the Court of Appeals.
Ann and Paul Pinkston were married in 1961 and remained together until May of 1980. She filed for divorce in June, 1980. She was granted a divorce and the only basis for disagreement that remains between the parties is the property settlement order that was entered. The parties had acquired extensive personal and real property, some through an inheritance by Ann Pinkston from her family and the balance through their joint efforts and the efforts of Paul Pinkston. They acquired considerable realty, including a farm in Lonoke County which consists of 318 acres, a hardware store known as Deese Hardware, a laundromat, and numerous vehicles, farm equipment and other personalty. A master was appointed by the chancellor to hear evidence on the extent of the ownership of the property by the individual parties and to make recommendations as to the disposition according to Arkansas law. Extensive hearings were held during which both parties were represented by attorneys. An appraiser was employed who testified as to the market value of all the real estate. The master confirmed exactly how the parties acquired each separate parcel of realty and it is not disputed that Ann Pinkston was entitled to credit for her inherited portion of the property. The master approached the problem by determining the total value of the property and then dividing it according to a percentage each should be entitled to in the total property. Neither party asked for the property to be sold. The master found that Ann Pinkston was entitled to 56% of the property and Paul Pinkston 44%. The master listened to the testimony of the parties and submitted a detailed, extensive order of findings of fact and recommendations. He recommended that the property be divided in kind as to the real estate. Most of the personalty had already been ordered sold and the proceeds divided, or the parties were allowed to keep certain personalty. The chancellor ordered that each party would have ten days in which to submit a proposal to the court of an in kind division of the realty. Only the appellee, Paul Pinkston, submitted such a proposal, and the chancellor essentially adopted that proposal. The farm was divided in half, Ann Pinkston to receive the north half and Paul Pinkston to receive the south half. She argues on appeal that she was entitled to more than half of the land since she was to receive 56% of the property. She does not argue that the property should be sold, she only argues that she should be given more credit or more property as a result of the chancellor’s order. The chancellor made no finding as to the value of the farm but no doubt took into consideration that there was evidence that the north half of the farm was more valuable than the south half; the north half was more suitable to agriculture and residential development and was bordered on one side by a paved road. If that factpr was considered then the chancellor was justified in entering his order and we cannot say he was clearly wrong.
On appeal we review a chancellor’s decree in a divorce case to determine if it was clearly erroneous. Arkansas law provides that jointly held property should be divided equally unless specific findings are made that would justify a departure from an equal division. Ark. Stat. Ann. § 34-1214 (Supp. 1981). In this case the master found that Ann Pinkston was entitled to more than a half interest because she inherited some of the property and through that inheritance contributed more than half. Paul Pinkston was given credit because of his unusual contribution as a trader and an energetic worker. Certainly we cannot substitute our judgment on appeal as to what exact interest the parties should have. McCray v. McCray, 256 Ark. 868, 514 S.W.2d 219 (1974). We can only look to see if the order was clearly wrong. Ark. Rule of Civil Procedure, Rule 52.
It is suggested that the order of the chancellor to withhold a certain property of the parties to pay debts, of what amounted to a corporation, was contrary to the law. The court found that “the debts of the business . . . are the debts of the parties-and should be paid from the assets of the parties.” Those debts no doubt were of Deese Hardware and the laundromat. Ann Pinkston, Paul Pinkston and their children no doubt formed a corporation and held those businesses in the name of that corporation. But the record is silent on the names and the extent of the corporate control. This is not a case where corporate assets are being ordered sold to pay personal debts or personally held property is being sold to satisfy corporate debts. The chancellor’s finding was that the debts owed were the debts of the parties and we have no evidence at all on which we can make a finding that this was an erroneous finding of fact. It is simply argued that it was error. There was evidence that Ann Pinkston had not cooperated with the master. Her counsel, no doubt as instructed, objected to most of the procedures before the master and after the chancellor entered his order, a general objection was made as to his findings. But we cannot say that any of his findings should be set aside as clearly wrong. Therefore, the judgment is affirmed.
Affirmed. | [
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Per Curiam.
In January 1988 we remanded this case to the trial court for an evidentiary hearing on an issue raised by petitioner under Criminal Procedure Rule 37. Dumond v. State, 294 Ark. 379, 743 S.W.2d 779 (1988). The hearing was limited to petitioner’s allegation that his counsel on appeal was ineffective for not supplementing the record on appeal to show that a timely motion for mistrial had been made in regard to an undisclosed fingerprint report. The petitioner alleged that the motion for mistrial was made during an off-the-record conference in chambers. We remanded the case to the trial court to supplement the record with the off-the-record conference. The evidentiary hearing was held on May 19,1988, and the record of that hearing was lodged with this court, but the trial judge who conducted the hearing did not make findings of fact with respect to the hearing. We again remanded the matter to the trial court since the clearly conflicting testimony of the witnesses at the hearing as to what occurred required findings of fact from the court. The findings have been rendered and are now before us.
After hearing and assessing the testimony adduced at the hearing, the court found that the attorneys for the state and defense engaged in an informal discussion of the circumstances surrounding the fingerprint report and that neither a motion for mistrial was made nor any ruling made by the trial court on a material matter which was not made a part of the record.
This court recognizes that it is the trial court’s task to assess the credibility of witnesses and resolve conflicts of fact. McDaniel v. State, 291 Ark. 596, 726 S.W.2d 679 (1987); Huff v. State, 289 Ark. 404, 711 S.W.2d 801 (1986). As there was ample evidence from which the trial court could have concluded that there was no off-the-record motion for mistrial, counsel on appeal could not have been ineffective in failing to move to supplement the record to show a timely motion for mistrial. Petitioner has not shown that he is entitled to any relief pursuant to Criminal Procedure Rule 37. Accordingly, his petition is denied.
In a related matter, petitioner has requested permission to file a brief on the issues raised in the hearing on remand. As noted when we remanded this case for findings of fact, the request was extraordinary in a Rule 37 case and, moreover, premature since the findings of fact had not yet been entered. In light of the trial court’s findings, the request is moot.
Petition denied. | [
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Minor W. Millwee, Justice.
The parties to this suit were married in 1938 and lived together in Union County, Arkansas, until October, 1947. On February 13, 1948, appellant, Azzie Lee Alexander, filed a suit for divorce against appellee, Mack Alexander, in which she alleged: “That Plaintiff and Defendant have one child, a boy, Mack Alexander, Jr., age 8 years, adopted by Plaintiff and Defendant; that the child is afflicted with asthma and requires constant attention and care and expensive medical treatment, approximately $40 per month; that Plaintiff has had the sole care of the child and is a proper person to have its care and custody.”
The answer and cross-complaint of appellee filed on January 15, 1949, stated: “The defendant admits that the plaintiff and the defendant have one adopted child, a boy, whose name is Mack Alexander, Jr., but the defendant denies that the medical bills of said child are approximately $40 per month.”
The original cause was tried and a decree entered on April 13, 1949, awarding a divorce to appellant, Azzie Lee Alexander, approving a property settlement made by the parties and dismissing appellee’s cross-complaint. The decree also awarded appellant custody of the child, Mack Alexander, Jr., and ordered • appellee to pay $75 per month for the child’s support and maintenance. Ap-pellee prayed and was granted an appeal from that part of the order directing payment of support money for the child, but the appeal was never perfected.
On May 31, 1949, after lapse of the term at which the decree was rendered, appellee filed the instant suit to modify the decree rendered on April 13, 1949, by setting aside the allowance of $75 per month for support of the child. The petition alleges: “Defendant states that until after the entry of said decree this defendant was led to believe by the plaintiff that said minor child had been adopted to the plaintiff and the defendant in the Juvenile Court of Caddo Parish, Shreveport, Louisiana; that the said minor child is a near relative of the plaintiff, being the son of the plaintiff’s niece; that at the suggestion of the plaintiff, this defendant consented to the adoption of said child and thereafter left the entire matter in the hands of the plaintiff to complete said adoption; that this defendant understood from the plaintiff that the adoption had been completed and had not learned otherwise until after the decree was entered in this cause; that the defendant thereafter investigated the adoption proceedings and found that said minor child had never been adopted and that since the plaintiff and defendant were divorced, under the law of Louisiana, could not be adopted; this defendant thereupon filed a motion with the Juvenile Court of Caddo Parish, Louisiana, to dismiss said adoption proceedings, which was done by the court, a copy of which order is attached hereto, marked ‘Exhibit A’ and made a part of this petition.
“This defendant states that said minor child is not his child either by blood or adoption, and that this defendant is not under any legal obligation to support said child, although he will continue to do so voluntarily, according to his ability, in keeping with the station in life of said child.”
The response of appellant interposed the plea of res judicata and alleged that the validity of the adoption proceedings was an issue in the original cause wherein appellee admitted in his pleadings and testimony that the child had been legally adopted.
At the hearing on the petition to modify the decree of April 13, 1949, appellee introduced the deposition of appellant in the original divorce action in which she testified that the child was legally adopted in Shreveport, Louisiana, in the latter part of 1939 or 1940; that the child was then 12 or 13 months old and was the son of her niece; that Shreveport attorneys were employed and that she, the appellee and the child’s mother and grandmother appeared in the Louisiana court with the child.
Appellee testified at the hearing on his petition to modify that in 1942 the parties agreed to adopt the child; that appellant brought the child from Shreveport stating that he had been adopted; that about six months later, when the child’s mother and grandmother objected to them having the child, appellee and appellant returned the child to its mother in Shreveport, Louisiana, after they conferred with Shreveport attorneys; that about ■ six months later they were advised that they could have the child and appellant went to Shreveport where she paid the attorneys $25 and returned to El Dorado with the child, again stating that he had been adopted; that after rendition of the divorce decree he learned upon investigation that the adoption proceedings in Louisiana had not been completed and said proceedings were dismissed by the Louisiana court upon his motion on April 26, 1949. The parties stipulated that an investigation of the court records in Caddo Parish, Louisiana, made prior to the date of the original decree would have revealed the facts shown on the petition to modify.
After the hearing on the motion to modify, the chancellor found that the child had not been legally adopted by the parties; that, since the child was neither the natural nor adopted son of appellee, the latter was not liable for the child’s support and the monthly allow- anee of $75 was ordered vacated and set aside. This appeal follows.
In order to sustain the decree vacating the order of allowance for support of the child, appellee contends that his motion is based on the 4th Subdivision of Ark. Stats. (1947), § 29-506, which empowers the court to vacate or modify its judgment or order after expiration of the term “for fraud, practiced by the successful party in the obtaining of the judgment or order.” The rule which we have adopted and followed in many decisions involving suits to vacate or modify a decree under this .subdivision of the statute is stated by Justice Butler in Hendrickson v. Farmers’ Bank & Trust Co., 189 Ark. 423, 73 S. "W. 2d 725, as follows: “The fraud for which a decree will be canceled must consist in its procurement and not merely in the original cause of action. It is not sufficient to show that the court reached its conclusion upon false or incompetent evidence, or without any evidence at all, but it must be shown that some fraud or imposition was practiced upon the court in the procurement of the decree, and this must be something more than false or fraudulent acts or testimony the truth of which was, or might have been, in issue in the proceeding before the court which resulted in the decree assailed. James v. Gibson, 73 Ark. 440, 84 S. W. 485; Johnson v. Johnson, 169 Ark. 1151, 277 S. W. 535; Boynton v. Ashabranner, 75 Ark. 415, 88 S. W. 566, 1011, 91 S. W. 20.”
The rule is similarly expressed in Parker v. Sims, 185 Ark. 1111, 51 S. W. 2d 517, where the court said: “The law is settled that the fraud which entitles a party to impeach a judgment must be fraud extrinsic of the matter tried in the cause, and does not consist of any false or fraudulent act or testimony the truth of which was or might have been in issue in the proceeding before the court which resulted in the judgment assailed. It must be a fraud practiced upon the court in the procurement of the judgment itself.” See, also, Turley v. Owen, 188 Ark. 1067, 69 S. W. 2d 882; Manning v. Manning, Executor, 206 Ark. 425, 175 S. W. 2d 982; Pattillo v. Toler, 210 Ark. 231, 196 S. W. 2d 224.
Ill the leading case of United States v. Throckmorton, 98 U. S. 61, 25 L. Ed. 93, examples of acts which, constitute extrinsic or collateral fraud are mentioned as follows : “Where the unsuccessful party has been prevented from exhibiting - fully his case, by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client’s interest to the other side,— these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and a fair hearing. . . . On the other hand, the doctrine is equally well settled that the court will not set aside a judgment because it was founded on a fraudulent instrument, or perjured evidence, or for any matter which was actually presented and considered in the judgment assailed.”
In Dornfield v. Dornfield, 192 N. Y. S. 497, 200 App. Div. 38, custody of the minor children of the marriage was awarded to the plaintiff in a divorce action. By leave of the court, plaintiff was allowed to append a motion for support of said minor children to the end of the divorce decree. At the hearing on the motion for support, the defendant introduced proof that the children of the plaintiff were illegitimate. The court held that the question of legitimacy was res judicata between the parties where it was alleged in the original complaint for divorce that the children wére the issue of the marriage and the decree awarded care and custody of such issue to the plaintiff.
In the case of Lowell’s Estate v. Arnett, 104 Col. 343, 90 Pac. 2d 957, the court held that a finding in a divorce decree that a minor child had been adopted by the parties was not subject to attack in a subsequent proceeding against the husband’s estate to recover money claimed to have accrued, under the divorce decree, for support and education of the child. The case of Commonwealth v. Bednerak, 62 Pa. Superior Ct. 118, involved a proceeding to revoke an order for the support of a child on the ground that the child mentioned in the original order was not the child of petitioner. In holding the matter res judicata, the court said: “It was a material inquiry in the original hearing* whether Elizabeth was in the class ‘children’ as described in the Act of 1867; and that question having been decided by a court of competent jurisdiction it was not within the capacity of the Municipal Court to retry that issue. ’ ’
The pleadings and testimony in the original divorce proceeding in the instant case clearly presented the issues as to whether the child in question was the adopted child of the parties and appellee’s liability for the child’s support. The complaint alleged the adoption of the child and the answer filed eleven months later admitted the truth of the allegation. The petition to modify the decree does not charge that appellant knowingly, corruptly or fraudulently misrepresented to appellee or the court that the child had been adopted and the proof does not warrant such conclusion. Appellant doubtless believed in good faith that the adoption proceedings instituted 7 or 8 years previously had been completed. However, if she knowingly and falsely testified at the original hearing such action would have amounted to intrinsic fraud and does not involve such extrinsic or collateral fraud as is required to modify or vacate the original decree. The burden was upon appellee in the original hearing to meet the issue of his liability for the child’s support and he had ample time and opportunity to do so. There would be no end to litigation if he is permitted to retry the same issue in a subsequent proceeding when there is an absence of fraud practiced upon the court in the procurement of the original decree.
Appellee contends that the misrepresentation that the child had been adopted was in regard to a jurisdictional fact and that the court was, therefore, without jurisdiction to order appellee to support and maintain the child in the original decree. In Gassady v. Norris, 118 Ark. 449, 177 S. W. 10, the court held that an allegation in a suit to sell land for the non-payment of taxes, that the owner of the land was unknown, made with knowledge of the falsity of the allegation, was not such extrinsic fraud as would authorize relief against the judgment, saying: “But these allegations were not sufficient to constitute a fraud practiced by the successful party in obtaining the judgment. The allegation in the complaint in the suit to condemn, that the owner was unknown, was sufficient to give the court jurisdiction to proceed against the property. It was not a fraud on the court to make this allegation although it was untrue, for the court had the power to inquire into its jurisdiction and to determine whether or not it was true.” So here, the allegation in the complaint that the child was adopted was sufficient to give the court jurisdiction to determine appellee’s liability for the child’s support and the court, having jurisdiction of the parties and the subject-matter, was fully empowered to determine the issues raised in the pleadings.
The ease of Wilder v. Wilder, 207 Ark. 414,181 S. W. 2d 17, relied on by appellee, involved a suit by a nonresident insane wife to set aside a divorce secured by her non-resident husband. One of the allegations of fraud was that the decree was secured without service of process upon the wife. Upon reversal in this court the trial court set aside the original decree because the wife had not been properly served with summons and we affirmed on the second appeal in Wilder v. Wilder, 208 Ark. 521,186 S. W. 2d 933. Here appellant and appellee were before the court and represented by able counsel. Proof was taken on the issues which were fully determined without any fraudulent concealment of material facts.
We conclude that the learned chancellor erred in vacating the order of support made in the original decree. The decree appealed from is, therefore, reversed and the cause remanded with directions to dismiss appellee’s petition to modify the decree of April 13, 1949. | [
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Lyle Brown, Justice.
Appellee, Margie Lee Benefield, obtained a default judgment in a personal injury case against O. B. Brown. Members Mutual Insurance Company was the liability insurance carrier for O. B. Brown. Margie Lee Benefield, after the judgment, proceeded against Members Mutual to recover upon Brown’s liability insurance policy. Members Mutual appeals from the judgment obtained against it. It is appellant’s position that Brown failed to notify it of filing of suit and service of process and that he failed to immediately forward summons to appellant insurer, all as required by the policy.
Most of the facts were stipulated. The accident occurred in Lafayette County on February 21, 1970. A few days thereafter, Brown, who resided in Dallas, went to the Dallas office of Members Mutual and reported the collision. Members Mutual immediately assigned investigation to Beaubouef Claim Service in Shreveport. Suit was filed on August 18, 1970, and a copy of the complaint was forthwith mailed by appellee’s counsel to Beaubouef. The latter promptly forwarded the complaint to Members Mutual. On September 30, 1970, non-resident service was had on Brown in Dallas. A week thereafter, Brown called Members Mutual and relayed the information that he had received another letter about the suit; he did not specifically tell them that he had received a summons. On October 21, 1970, Beaubouef was notified by appel-lee’s counsel that service was complete, that Brown was in default, and that appellee expected to obtain judgment as soon as court convened. On November 6, 1970, default judgment was entered. At no time did Members Mutual take any formal action to defend the suit.
Condition 3 of Brown’s policy provided: “If claim is made or suit is brought against the insured, he shall immediately forward to the company every demand, notice, summons or other process received by him or his representative”. Condition 6 provided that no action would lie against the company unless, as a condition precedent, the insured shall have fully complied with the terms of the policy.
We have laid down a principle which we think to be controlling in the case before us. We said in Kealy v. Lum bermen’s Mutual.Ins. Co., 239 Ark. 766, 394 S.W. 2d 629 (1965):
It is our opinion that if appellee did in fact receive notice in ample time to properly defend the suit against the company, then it should not be allowed to escape liability merely because the provisions of section 11 of the policy were not strictly complied with.
Section 11 mentioned in Kealy is identical with Condition 3 in Brown’s policy.
The trial court in essence instructed the jury that if Members Mutual received notice of the filing of the suit in ample time to provide reasonable opportunity to defend, then appellee was entitled to a verdict. We hold that to be the law as pronounced in the Kealy case. When that law is applied to the unchallenged record in this case it is abundantly clear that appellee was entitled to recover from Members Mutual.
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Donald L. Corbin, Justice.
Appellant, William C. Hick-son, appeals a judgment of the Miller Circuit Court convicting him of two counts of second degree murder and one count of first degree battery. The judgment was entered pursuant to a jury verdict and sentences appellant consecutively to terms of 20 years imprisonment for each murder conviction and 15 years imprisonment for the battery conviction. The total sentence is 55 years and our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. 29 (D(b).
Appellant was originally charged with one count of capital felony murder and two counts of first degree battery in connection with a March 2, 1991, house fire involving a liquid accelerant. One victim, Raymond Call, was killed in the fire occurring on March 2, 1991. Another victim, Ralph Davis, was severely burned in the fire and died from complications of his burns on May 31, 1991. The third victim, Allen McClure, who is appel lant’s uncle, survived the fire but not without suffering severe burns. Following Davis’ death, the felony information was amended to change the corresponding charge from battery to capital felony murder.
On appeal, appellant argues three points for reversal of the judgment. First, he argues the trial court erred in denying his motions for directed verdict on the capital felony murder charges. Second, he argues the trial court erred in admitting into evidence prejudicial photographs of the victims. Third, he claims the trial court erred in admitting into evidence a videotape of the crime scene showing Call’s body in the burned house. We find no merit to these arguments and affirm the judgment of conviction.
Appellant’s first argument is the trial court erred in denying his motions for directed verdict on the two charges of capital felony murder; the motions were made on grounds there was insufficient evidence of the underlying felony of arson. Appellant claims the state did not offer any proof that appellant possessed the mental state required for arson — purposefully causing property damage. Appellant acknowledges that the state offered some evidence that he intended to “burn someone up,” but claims neither this evidence, nor any other that was presented, is evidence of his intent to cause property damage or to commit arson. Appellant claims that at most, the evidence presented supports only a charge of first degree murder. As there is no proof of the underlying felony of arson, argues appellant, there is insufficient proof of capital felony murder and the trial court should have directed a verdict on those charges.
The state responds with the argument that appellant was not prejudiced by any asserted error relating to the capital felony murder charges because the jury found appellant guilty only of second degree murder, not capital felony murder. Appellant counters the state’s argument with the claim that he was prejudiced merely because the jury was qualified to impose the death penalty. He argues that because the jury was death qualified, it was prone toward convicting appellant and he was therefore prejudiced, even though he was acquitted of the capital felony murder.
We agree with the state that appellant was not prejudiced in this respect. Appellant’s argument as to prejudice, that death qualified juries are prone to convict, is one that we have previously rejected. Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989); Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986). The United States Supreme Court has also rejected the argument and held that death qualified juries are constitutional. Lockhart v. McCree, 476 U.S. 162 (1986).
Ordinarily, we treat a challenge to the denial of a motion for directed verdict as a challenge to the sufficiency of the evidence. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). However, we need not review the sufficiency of the evidence in the present case because appellant moved for a directed verdict only on the capital felony murder charges and the jury acquitted defendant of the capital felony murder charges by finding him guilty of second degree murder. Even if we were to determine the trial court erred in denying appellant’s motions, the error would be rendered harmless by the verdict of guilt only as to second degree murder. If a defendant in a capital case does not receive the death penalty, he or she cannot obtain a reversal on appeal by pointing to errors relating to the jury’s consideration of the death penalty. Ward v. State, 298 Ark. 448, 770 S.W.2d 109 (1989); Allen v. State, 296 Ark. 33, 751 S.W.2d 347 (1988). Accordingly, we hold that due to the jury’s verdict of guilt only as to second degree murder, appellant was not prejudiced by an asserted error in the trial court’s denial of the motions for directed verdict on the capital murder charges.
Appellant’s second argument for reversal relates to the trial court’s admission into evidence of six photographs. Appellant specifically challenges the admission of State’s Exhibits 4, 7, 8, 18, 20, and 21. These exhibits depict the following:
(4) Allen McClure being treated by medical personnel;
(7) Raymond Call’s body in the burned house;
(8) Raymond Call’s body in the burned house; taken from a further distance;
(18) Ralph Davis’ face prior to autopsy;
(20) Raymond Call’s back prior to autopsy;
(21) Raymond Call’s face and trunk prior to autopsy.
Appellant claims the photographs are gruesome, highly prejudicial, cumulative, and offered by the prosecution only to inflame the jury.
The photographs in question were all the subject of a pretrial conference. The state proffered these photographs along with many others. Appellant stated his objections. After viewing the photographs and hearing arguments of counsel, the trial court denied appellant’s motion in limine to exclude the photographs. At trial, the trial court again ruled on the photographs and concluded they were admissible into evidence. The trial court made separate and distinct rulings on each photograph as each was admitted.
Exhibits 4,7, and 8 were admitted during the testimony of an investigating officer who stated the photographs were fair and accurate representations of the crime scene and would be helpful to the jury in understanding his testimony. Exhibit 18 was admitted during the testimony of the medical examiner who performed the autopsy on Ralph Davis. The medical examiner stated that Davis died from complications of his burns, some of which could be seen on his face and chest in Exhibit 18. Exhibits 20 and 21 were admitted during the testimony of the medical examiner who performed the autopsy on Raymond Call. The medical examiner stated Exhibits 20 and 21 would help her explain Call’s external injuries to the jury.
The admissibility of photographs is a matter within the sound discretion of the trial court and we do not reverse its rulings unless it abused its discretion. Crow v. State, 306 Ark. 411, 814 S.W.2d 909 (1991). Even inflammatory photographs are admissible if they tend to shed light on an issue, enable a witness to better describe the objects portrayed, or enable the jury to better understand the testimony. Id. Moreover, as was done in the present case, a defendant may not concede he may have caused the victim’s injuries and relieve the state of its burden of proving his or her guilt beyond a reasonable doubt. Id.; Allen, 296 Ark. 33, 751 S.W.2d 347.
Given the trial court’s consideration of the questioned photographs on two separate occasions at the pre-trial conference and again at trial, we cannot say it admitted the photographs with “carte blanche” approval, see Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986), or with a manifest abuse of its discretion. Accordingly, we affirm the trial court’s admission of the photographs into evidence.
Appellant’s third argument for reversal is that it was error to admit the videotape of the crime scene showing the house and Raymond Call’s body among the remaining debris. Appellant objects only to the playing of the portion of the tape showing Call’s body. He claims this was another opportunity for the state to present inflammatory evidence to the jury. He also claims the tape is cumulative, not helpful to the jury, and overwhelmingly prejudicial.
We have stated that a videotape is admissible if it is relevant, helpful to the jury, and not prejudicial. Logan v. State, 299 Ark. 255, 773 S.W.2d 419 (1989). These are generally the same requirements for the admission of photographs. See Elk Corp. of Arkansas v. Jackson, 291 Ark. 448, 725 S.W.2d 829 (1987) (citing Berry, 290 Ark. 223, 718 S.W.2d 447).
The questioned videotape was introduced during the testimony of one of the investigating officers. The officer testified he was on the crime scene when the house was already engulfed in flames and ordered another officer to photograph and videotape the scene. The testifying officer stated the videotape accurately depicted the scene and would help the jury to understand his testimony. The videotape does show Call’s body among the debris of the burned house. However, videotapes, like photographs, are not rendered inadmissible merely because they are cumulative. See Allen, 296 Ark. 33, 751 S.W.2d 347.
Consistent with its rulings on the videotape at the pretrial conference, the trial court ruled limited portions of the tape admissible at trial, subject to the additional limitation that no audio be played for the jury. In order to ensure that the inadmissible portions of the tape were not inadvertently played to the jury, the tape was not played until later in the trial. Given that the trial court considered the admissibility of the videotape twice and placed limitations on the portions that could be published to the jury, we cannot say it abused its discretion in admitting the tape into evidence.
The judgment of conviction is affirmed. | [
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Kirby, J.,
(after stating the facts). The conveyances of the lands from the grantor, E. B. Petty, to his children were ordinary warranty deeds reciting a certain consideration paid with no indication of any other consideration to be paid or the grant of the lands upon condition, making no mention of any trust or security for the payment of any further sum or the performance of any service to the grantor by the grantees. “An express trust cannot be proved by parol evidence, and neither will such evidence be heard to graft an express trust upon a deed absolute in its terms.” Fenter v. First National Bank of Malvern, ante p. 89.
The conveyances were not voluntary conveyances without consideration, nor was there any attempt to set them aside as in fraud of creditors. If the consideration for the deeds was an undertaking' on the part of the grantees to support and maintain the grantor, their father, for the remainder of his life and there was a failure on their part to comply with the undertaking, the grantor himself could have sued at law for the amount of the consideration after it became due, or treated the contract as void and brought suit in equity to cancel and set it aside for failure of consideration. If the conveyances had been made on such conditions, he or his heirs upon the condition broken could have set it aside. The grantor did not find it necessary, however, to convey the property upon condition and the right to cancel for failure of consideration because of maintenance not being furnished in accordance with the agreement, if there was such an agreement, was personal to him. Priest v. Murphy, 103 Ark. 465, 149 S. W. 98.
The guardian ad litem could not consent to the erroneous decree charging against the lands belonging to them or their interest therein a lien for payment of contribution to one of the grantees who had advanced money for the support of their father, the grantor of them all.
The decree is accordingly reversed, in so far as the rights of the minor appellants and their interest in the lands is concerned, and the cause remanded with directions to enter a decree of partition setting aside their interest in the lands to them without regard to and free of any claim for contribution from them to Mrs. Brilla Patton and John Petty for money advanced or services rendered to the said grantor in his lifetime. | [
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Jack Holt, Jr. Chief Justice.
Appellants Gary Moore, Jenni Moore, and Kenneth Haskett appeal their convictions on charges of possession of a controlled substance with intent to deliver and possession of drug paraphernalia. Appellants Paula McCray and Nathaniel Billings appeal from their convictions on charges of possession of drug paraphernalia. Trial was by jury; all five appellants were tried jointly and each elected not to testify.
On appeal, the Moores and Kenneth Haskett argue that the court erred: (1) in not granting a motion to sever based upon the introduction of incriminating statements by one or more of the codefendants; (2) in not directing a verdict when the State failed to make an in-court identification of defendants as the individuals having committed the crimes charged; (3) in failing to grant a continuance when the State did not produce its confidential informant; and (4) in not suppressing evidence obtained pursuant to an allegedly unlawful search conducted at the residence occupied by all five appellants. Only Haskett and Jenni Moore argue that the trial court erred in not directing a verdict in their favor based upon insufficiency of the evidence.
In a separate brief, appellants McCray and Billings argue only two issues. They contend that the court erred in not granting a motion to suppress which challenged the validity of the search warrant as to their separately rented room and that the court should have dismissed the charges because the term “paraphernalia” was impermissibly vague.
We find that the evidence was insufficient as to Jenni Moore and therefore reverse and dismiss her convictions. Next, throughout the proceedings below appellants sought a severance and at one point joined in a motion for mistrial (the severance and mistrial motions were renewed at the close of the State’s case) in response to the State’s introduction of testimony concerning incriminating statements by nontestifying codefendants. While the arguments on this issue by the Moores and Haskett tend to focus primarily on the trial court’s failure to sever appellants’ trial, the arguments by their very nature challenge the court’s related failure to grant a mistrial. Because we find that prejudicial error occurred on this point, we reverse and remand as to appellants Gary Moore and Kenneth Haskett. We comment on their remaining arguments only to the extent they are relevant to a retrial.
Notwithstanding that appellants McCray and Billings joined in the severance and mistrial motions, the trial court’s failure to grant those motions has not been raised as an issue by them on appeal. Because we find no merit to the points they have raised, we affirm their convictions and address their arguments separately.
JENNI MOORE AND KENNETH HASKETT SUFFICIENCY OF THE EVIDENCE
After the State had rested its case, appellant Kenneth Haskett moved for a directed verdict on grounds that there was insufficient evidence to convict him on charges of possession with intent to deliver and possession of drug paraphernalia. A similar motion was made by appellant Jenni Moore. The trial court denied both motions.
Where there is a challenge to the sufficiency of the evidence, we must decide that issue on appeal even though the case is being reversed and remanded on other grounds. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). In considering the issue, we disregard other possible trial errors. Harris supra; Birchett v. State, 289 Ark. 16, 708 S.W.2d 625 (1986).
The question on appeal is whether the verdict is supported by substantial evidence. Whether direct or circumstantial, the evidence must be of sufficient force that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). In determining the sufficiency of the evidence, it is necessary to ascertain only the evidence favorable to the appellee State, and it is permissible to consider only that testimony which supports the verdict of guilt. Id.
At trial, the State introduced testimony that Kenneth Haskett occupied the northeast bedroom of the Moore residence. A search of that bedroom produced a red and black plaque depicting a marijuana leaf, a paper bag with two baggies containing between fifteen and sixteen ounces of marijuana, and a can containing a roach clip with a partial marijuana cigarette, straws and a razor blade. The evidence against Kenneth Haskett was clearly sufficient to support his convictions.
The same cannot be said of appellant Jenni Moore. The search warrant in this case specified that it was for the residence of “Gary Moore . . . also occupied by a Kenneth Haskett.” No mention is made of a Jenni Moore. At trial, one of the State’s witnesses testified that the southwest bedroom of the Moore residence was occupied by appellants McCray and Billings, the northeast bedroom by Gary Moore, and the northwest bedroom by Kenneth Haskett. Again, there is no mention of Jenni Moore. Further testimony revealed that when the warrant was served, a “white female” was sitting in the living room. At times this individual is identified as “she” or the “lady.”
While the record discloses that marijuana and drug paraphernalia were discovered in the living room, nowhere is there any reference to appellant Jenni Moore as the person seated in the living room. In fact, it does not appear that any of the State’s witnesses ever mentioned Jenni Moore’s name in connection with the evidence introduced at trial.
It is axiomatic that substantial evidence must force or induce the mind to pass beyond suspicion or conjecture. Gardner, supra. Where, as here, there is no evidence from which the jury could find the defendant guilty without resorting to surmise or speculation, a directed verdict is proper. We find it inconceivable how appellant Jenni Moore could have been convicted of the crimes charged absent pure conjecture that she was the individual in the living room. Accordingly, we reverse and dismiss her convictions for possession with intent to deliver and possession of drug paraphernalia.
GARY MOORE AND KENNETH HASKETT SEVERANCE — MISTRIAL
Before trial, appellant Haskett filed a motion to sever because it was expected that the State would try — despite each codefendant’s desire not to testify — to introduce evidence of statements made by one or more of the codefendants which implicated everyone at the Moore residence. The motion was joined by each appellant but was denied by the court.
The State’s intent was to introduce the contents of an oral statement by appellant Paula McCray which implicated Gary Moore and Nathaniel Billings and the contents of another statement by Gary Moore in which the investigating officer quotes Moore as admitting that “they” obtained the marijuana discovered at the residence from some named individual. At trial, Haskett’s counsel renewed the severance motion and cited Rule 22.3(a) of the Arkansas Rules of Criminal Procedure, which provides:
When a defendant moves for a severance because an out-of-court statement of a codefendant makes reference to him but is not admissible against him, the court shall determine whether the prosecution intends to offer the statement in evidence at the trial. If so, the court shall require the prosecuting attorney to elect one (1) of the following courses:
(i) a joint trial at which the statement is not admitted into evidence;
(ii) a joint trial at which the statement is admitted into evidence only after all references to the moving defendant, have been deleted, provided that, as deleted, the statement will not prejudice the moving defendant; or
(iii) severance of the moving defendant.
Upon renewal of Haskett’s motion to sever, the State opted to proceed under subsection (ii) of Rule 22.3(a), and the court once again denied the severance motion.
Under subsection (ii), the prosecutor replaced the pronoun “they” in Moore’s statement as given to the officer with the pronoun “he.” This had the effect of removing any reference in the statement to the remaining defendants because the statement now suggested that Gary Moore obtained the marijuana without the participation of the remaining appellants. The State then introduced the contents of Moore’s altered statement through the testimony of Officer A. J. Gary as follows:
Q. [D]id you ask Gary Moore where he had gotten or what he knew about those two sacks of what you identified to him as marijuana, when you asked him a question?
A. Yes, I did.
Q. All right. And, what did he say about where he had gotten the marijuana?
A. Gotten it from a girl by the name of Sissy Rogers.
On cross-examination by counsel for one of the appellants, the officer was asked,
[Y]ou said that he said that he got the. . . marijuana from a lady named Sissy Rogers?
The officer inadvertently responded,
He [Moore] advised that they had gotten it. [Emphasis ours.]
Haskett’s counsel immediately requested a mistrial since Officer Gary’s testimony which quoted Moore as saying “they,” as opposed to the agreed substitution “he,” shifted the incriminating effect of the statement from Moore to all of the appellants as a group. The trial court denied the motion.
There followed a protracted exchange between court and counsel as to the requirements of Rule 22.3, the purpose for the earlier motion to sever, and the significance of the officer’s use of the pronoun “they” instead of “he.” The net result of the exchange by court and counsel was a second motion for mistrial which was joined by all defendants but was denied by the court. The mistrial and severance motions were renewed at the close of the State’s case but were again denied.
Although labeled on appeal as error for failure to grant a severance, the claim by Moore and Haskett is in reality a claim of error for failure to grant a mistrial, and we treat it accordingly. Appellants’ motion for mistrial was part and parcel of the position maintained throughout the proceedings that a severance should have been granted and, at this juncture of the trial, the only manner by which the trial court could have perfected a severance would have been to grant appellants’ motion for a mistrial.
Where two or more defendants are tried jointly, the pretrial confession of one which implicates the other is not admissible against the other unless the confessing defendant waives his Fifth Amendment rights so as to permit cross-examination. Cruz v. New York, 481 U.S. 186 (1987).
In the case at bar, all five appellants had chosen not to testify. In Burton v. United States, 391 U.S. 123 (1968), the Supreme Court held that a defendant is deprived of his rights under the Confrontation Clause when a codefendant refuses to testify but the codefendant’s incriminating confession is introduced at their joint trial, even if the jury is instructed to consider that confession only against the codefendant. In Cruz, supra, the Court applied the same rule where the defendant’s own interlocking confession had been introduced.
However, in Richardson v. Marsh, 481 U.S. 200 (1987), the Court held that admission of a nontestifying codefendant’s confession does not violate the defendant’s rights under the Confrontation Clause if the court instructs the jury not to use the confession in any way against the defendant, and the confession is “redacted” to eliminate not only the defendant’s name but also any reference to the defendant’s existence. The rationale of the Court’s holding in Richardson is reflected in our Rule 22.3.
Pursuant to Rule 22.3(a), where two defendants are tried jointly, neither testifies, and the State chooses to introduce the out-of-court statement of one which implicates the other, the court shall sever the trial upon motion by the latter defendant unless: (1) the prosecution decides not to introduce the statement; or (2) all references in the statement to the moving defendant are deleted, and the statement does not, as altered, prejudice the moving defendant. The rule is mandatory.
The prosecution chose to proceed under Rule 22.3(a) by changing the pronoun “they” in Moore’s statement to “he” in order to limit the statement to Moore and avoid any reference to the other defendants. We commend the effort to comply with 22.3. However, the State’s effort to comply with Rule 22.3 collapsed when the officer inadvertently used the pronoun “they” — reflecting Moore’s statement as recorded but not as altered by the State during trial pursuant to the rule. The rights sought to be protected by the holdings in Bruton and Richardson were jeopardized, and it is clear that the appellants who raise this issue on appeal were prejudiced.
In an effort to protect their respective clients at the time of the mistrial motion, several of the attorneys argued that cross-examination of the officer should be permitted to show that “they” did not refer to any of the various codefendants other than Gary Moore. Counsel for Moore, however, argued that a reasona ble inference to be drawn from Moore’s actual statement that “they” obtained the marijuana was that the appellants as a group, excluding Moore, got the marijuana from Sissy. Accordingly, Moore’s counsel argued that he should be permitted to question Officer Gary in that regard and further determine why on direct examination the officer had used the substituted pronoun “he” when his notes said “they” and the officer later said “they” on cross-examination.
How can we expect jurors to dispell the inference that appellants obtained the marijuana as a group when the attorneys themselves could not sort out the implications of altering Moore’s statement to “he” — when in fact Moore had said “they” — and the officer testified both ways on the stand? The situation was further prejudicial to appellant Gary Moore by virtue of the inference that “they” could have included or excluded Moore from those who allegedly obtained the marijuana. Under the circumstances, we conclude that it was error not to sever the cases and grant the motion for mistrial at the time that request was entered.
Relying on Bruton, Gary Moore and Haskett also contend that the trial court should have sustained an objection to statements introduced at trial in which Paula McCray implicated Gary Moore and Nathaniel Billings. Appellants are correct. This is so even if Gary Moore’s allegedly interlocking confession had been properly introduced earlier. Cruz, supra.
Accordingly, we reverse and remand as to appellants Gary Moore and Kenneth Haskett but not as to appellants Paula McCray and Nathaniel Billings since on appeal they have elected not to contest the court’s failure to sever or the failure to grant a mistrial.
DIRECTED VERDICT — IDENTIFICATION
At the close of the State’s case, Haskett’s counsel moved for a directed verdict on the grounds that at no time had any of the State’s witnesses actually identified the various defendants present in court as those who participated in the crimes charged. The motion was joined by all five defendants but was denied by the court.
Our examination of the record discloses that during the State’s case several witnesses identified by name those individuals arrested in the residence where the marijuana and drug paraphernalia was discovered. However, the record is not clear as to whether at any time during trial (in the presence of the jury) the State explicitly identified the defendants in court with the named individuals to whom the State’s evidence related.
It is beyond dispute that “an element to be proved in every case in that the person who stands before the court in the position of defendant is the one whom the indictment or information accuses and to whom the evidence is supposed to relate.” United States v. Fenster, 449 F. Supp. 435 (E. D. Michigan, 1978); McClard v. United States, 386 F.2d 495 (8th Cir. 1967) (Lay, Judge, dissenting), cert. denied, 393 U.S. 866 (1968).
Since we reverse and remand as to appellants Gary Moore and Kenneth Haskett on another ground and because it is unlikely that the State’s proof would be presented in the same fashion in the event of retrial, we do not address this point further.
CONTINUANCE
On April 2, 1987, the Moores filed motions requesting that the State’s confidential informant be produced and that a continuance be granted until the informant could be made available for examination. At a pretrial hearing, the court ruled on the motion by stating, “motion to produce confidential informant, granted.” However, appellants’ case was brought to trial four days later without the informant having been located. An objection (later overruled) was filed on the grounds that this prejudiced appellants’ right of cross-examination and constituted an abuse of discretion in light of the earlier ruling.
Our case law governing the State’s obligation to disclose the identity of its confidential informants controls the issue before us. That law supports the trial court’s decision.
In McDaniel v. State, 294 Ark. 416, 743 S.W.2d 795 (1988), we noted that where an informant is present or participates in the crime with the defendant, his testimony would be relevant, and it would be prejudicial error for the State not to reveal the informant’s identity. When, however, there is no evidence that the informant participated in the crime, was a witness to the crime, or possessed any exculpatory information, failure to identify the informant is not in any way prejudicial to the appellant’s defense. See Sanchez v. State, 288 Ark. 513, 707 S.W.2d 310 (1986).
The informant in this case did not participate in the crime, and appellants have failed to establish that the informant would have been able to offer any relevant testimony. In fact, appellants’ stated purpose for calling the informant as a witness was to show that he had been paid for his information. We find no abuse of discretion by the trial court under these circumstances.
UNLAWFUL SEARCH
Under this heading the Moores and Kenneth Haskett contend that evidence seized pursuant to the warrant should have been suppressed because the officer who obtained the warrant failed to disclose the basis for his statement that the confidential informant was reliable. Appellants McCray and Billings raise the same point. The Moores and Haskett also argue that reversible error occurred in that the search was executed after dark whereas the warrant did not authorize a nighttime search. We find no error in the trial court’s refusal to suppress the evidence.
Rule 13.1(b) of the Arkansas Rules of Criminal Procedure provides that if an affidavit or testimony is based in whole or in part on hearsay, the affiant or witness shall set forth particular facts bearing on the informant’s reliability. The rule also requires that the affiant disclose, as far as practicable, the means by which the information was obtained.
The affidavit in support of the warrant issued by Chancery Judge Andre E. McNeil sets forth that an unnamed individual notified Officer Gary that he had recently observed a metal tray in the residence of Gary Moore containing what appeared to be marijuana and that he observed a black female rolling marijuana cigarettes from the material in the tray. The affidavit then states that the informant had been proven reliable and had helped in solving eleven burglaries and one controlled substance case.
The affiant, Officer Gary, testified at a pretrial hearing that the confidential informant had been referred to the Conway Police Department by the Faulkner County Sheriffs Department because the case involving appellants was within the city’s jurisdiction. Officer Gary was given the information concerning the informant’s reliability by Investigator Jerry Bradley of the sheriffs office who had worked directly with the informant on the burglaries. Bradley not only went with Officer Gary to Judge McNeil’s office to obtain the warrant but also went to the Moore residence and subsequently participated in the search.
We do not consider the warrant and underlying affidavit at issue defective merely because the officer executing the affidavit was not a member of the law enforcement agency directly acquainted with the informant’s reliability. Baxter v. State, 262 Ark. 303, 556 S.W.2d 428 (1977). While the affidavit in Baxter actually contained the statement that the informant had proven reliable to some outside law enforcement agency, which was not disclosed here, even that statement was found not to be sufficient in and of itself, and this court emphasized those factors which we considered more relevant to a determination of the informant’s reliability. Here, we find that the affidavit states the informant had helped in solving eleven burglaries and one controlled substance case and that he personally witnessed the events at the Moore residence.
Also, the record shows that Officer Gary testified before Judge McNeil in the presence of Investigator Bradley as to the exact information contained in the affidavit. While it may have been better practice under Rule 13.1(b) had Officer Gary specified to Judge McNeil that Bradley was the one directly acquainted with the informant, we cannot say that the circumstances dictate the conclusion that the affidavit, warrant, and subsequent search were invalidated by his failure to do so.
In any event, the facts in the case at bar clearly come within the “good faith” exception announced in United States v. Leon, 468 U.S. 897 (1984). See also Jackson v. State, 291 Ark. 98, 722 S.W.2d 831 (1987).
Appellants further contend that the court should have granted the motion to suppress because the search was commenced after dark. See A.R.Cr.P. Rule 13.2(c). The argument is without merit. Officer Gary testified that the search was commenced before 8:00 p.m., which complies with Rule 13.2(c). James v. State, 280 Ark. 359, 658 S.W.2d 382 (1983).
PAULA MCCRAY AND NATHANIEL BILLINGS INVALID WARRANT
Under this heading, separate appellants McCray and Billings contend that the trial court erred in not suppressing the fruits of the search conducted in one bedroom of the Moore residence. It was shown that McCray and Billings occupied that bedroom as tenants, and the warrant failed to authorize a separate search for that particular room. Appellants’ position on this issue has been decided adversely to them on similar facts in Maryland v. Garrison, 480 U.S. 79 (1987). We find that decision controlling.
In Maryland, officers obtained a warrant to search the person of Lawrence McWebb and the premises known as “2036 Park Avenue third floor apartment.” When the officers applied for the warrant they had reason to believe that there was only one apartment on the floor described in the warrant. In fact, the third floor was divided into two apartments, which the officers did not realize until heroin, cash, and drug paraphernalia had been found in the second apartment (occupied by someone other than McWebb).
In Maryland the Supreme Court considered both the validity of the warrant and the manner in which it had been executed. It was determined that the first issue was governed by the information available to the officers at the time the warrant was obtained. The officers had no reason to suspect that the third floor contained more than one apartment, and the warrant was therefore valid when issued. The same is true here. The Moore residence, from all appearances, was a single family dwelling. Nothing within the knowledge of the officers executing the warrant suggested otherwise.
The second issue in Maryland, execution of the warrant, was upheld because nothing occurred prior to discovery of the evidence in the second apartment which would have or should have alerted the officers that the third floor contained more than one apartment. The Court specifically noted that nothing McWebb did or said at the time of the search would have suggested to the officers that there were two apartments. Again, the same is true here. Notwithstanding that it later developed that the Moore residence contained several “leased” bedrooms, nobody in the residence at the time of the search (including appellants McCray and Billings) brought that fact to the attention of the officers. Accordingly, we find no error on this point.
VAGUENESS
McCray and Billings also argue that the term “paraphernalia” is unconstitutionally vague as it relates to our code provisions which make possession with intent to use drug paraphernalia a criminal offense. Ark. Code Ann. § 5-64-403(c)(l) (1987). Appellants contend that our code provisions fail for want of “certainty” or “definiteness” and that they do not give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden. Nothing could be further from the truth.
Ark. Code Ann. § 5-64-101 (y) (1987) defines the term “drug paraphernalia.” The definition is exhaustive. Not only are the kinds of materials which constitute drug paraphernalia specified, but well over twenty terms are given which classify the activities relevant to a determination of whether an item is considered drug paraphernalia. Subsection (y) is followed by twelve subdivisions which list dozens of items and circumstances further defining drug paraphernalia. Virtually every item confiscáted as drug paraphernalia from the Moore residence and the bedroom occupied by McCray and Billings is included on the list — by name.
Subsection (12) alone specifies fourteen items considered drug paraphernalia and provides additional relevant explanations. Ark. Code Ann. § 5-64-101 is then further divided to assist in the determination of whether an item is drug paraphernalia by emphasizing the proximity of the object to controlled substances, whether there is any residue of controlled substances on the object, or whether there are any descriptive materials accompanying the object which explain its use. Section 5-64-403(c)(l) provides an additional list of twenty terms which describe the activities prohibited in connection with drug paraphernalia.
The challenged code provisions clearly give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden. Appellants’ position on this issue is entirely without merit. See also Garner v. White, 726 F.2d 1274 (8th Cir. 1984).
We note that at the conclusion of the brief filed on behalf of appellant Nathaniel Billings, counsel asks this court to award an adequate fee for services rendered. Apparently, counsel was appointed by the court below and his client is indigent. The proper motion in such cases should be filed in accordance with the requirements of Rule 28 of the Rules of the Supreme Court and the Court of Appeals.
Reversed and dismissed as to appellant Jenni Moore; reversed and remanded as to appellants Gary Moore and Kenneth Haskett; affirmed as to appellants Paula McCray and Nathaniel Billings.
Purtle, J., dissents in part. | [
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Steele Hays, Justice.
Bill and Mary Hively filed this suit on behalf of their eleven-year-old son, Richard, alleging medical malpractice by Dr. Harvey Edwards, appellee. On November 13, 1977, Richard suffered a fracture to bones of his right leg. Dr. Edwards set the fracture by closed reduction and applied a cast. The following morning Richard had a high fever and severe swelling of the leg. Fever, swelling and marked discoloration of the toes and foot persisted and a fasciotomy to combat the inflammation was done on November 16. On November 17 the youth was transferred to a Memphis hospital and amputation was narrowly averted. Treatment required several hospital stays and the final result was a severe and permanent injury, the injured leg being one and a half inches shorter, the right ankle being fused.
The Hivelys brought suit in 1979, claiming that Dr. Edwards was negligent in failing to diagnose an anterior compartment syndrome and by failing to take corrective measures promptly. There was forceful medical testimony that Dr. Edwards was negligent in diagnosis and in treatment, but this was disputed and the jury held for the defendant. Appellants ask us to reverse the trial court on several grounds, but we find no reversible error.
Appellants urge that they should have been permitted to ask Dr. Glen Dickson, a witness for the defense, whether he had previously reviewed medical records and written a report to St. Paul Insurance Company, giving his opinion of Dr. Edwards’ handling of the case. The issue came up during cross-examination of Dr. Dickson, who had seen Richard in consultation with Dr. Edwards. After establishing that Dr. Dickson had reviewed the records some four years earlier and had written a report, counsel for appellants asked who had sent him the records for his review. The issue was taken up in chambers, and following a hearing the trial judge held the evidence of insurance had some relevance as showing a possible bias by the witness, but that the prejudice which would result from the jury knowing insurance was involved outweighed any probative value.
We think the trial court correctly followed the requirements of Rule 403, Uniform Rules of Evidence, Ark. Stat. Ann. §29-1001 (Repl. 1979), by weighing conflicting factors before deciding whether to admit or reject the evidence. We cannot say that it abused its discretion by not admitting the evidence of insurance. See Hamblin v. State, 268 Ark. 497, 597 S.W.2d 589 (1980). We have often said that juries should not be needlessly informed about insurance coverage because of the prejudice inherent in such information. York v. Young, 271 Ark. 266, 608 S.W.2d 20 (1980); Pickard v. Stewart, 253 Ark. 1063, 491 S.W.2d 46 (1973); Strahan v. Webb, 231 Ark. 426, 330 S.W.2d 291 (1959); Pekin Stave & Mfg. Co. v. Ramey, 104 Ark. 1 (1912). In Hogan Co. v. Nichols, et al, 254 Ark. 771, 496 S.W.2d 404 (1973), we said that evidence of liability insurance is ordinarily excluded because of its lack of relevance; that because of the inherently prejudicial effect of such evidence, it should only be admitted when it has some probative value relevant to the issues.
Appellants counter with the argument that modern juries are conscious of the likelihood of liability insurance in malpractice cases, rendering prejudice minimal, and the possibility of bias, interest and credibility of the witness being affected is of greater probative weight than any possible prejudice. They point to instances where we have held evidence of insurance to be admissible in spite of prejudice. In Murray v. Jackson, 180 Ark. 1144, 24 S.W.2d 960 (1930), we declined to reverse the trial court in permitting testimony concerning insurance in a case involving disputed personal injuries. The plaintiff had introduced evidence that her injuries were permanent. The defendant then offered the testimony of a physician who said he examined the plaintiff at the hospital, that her injuries were not permanent and should not have required hospitalization. Counsel for plaintiffs was permitted to show on cross-examination that his examination of the plaintiff was at the request of an insurance company. We have said the evidence was proper for the purpose of impeachment or contradicting the witness, as the j ury might have found the employment made the physician biased in favor of the defendant. In Industrial Farm Home Gas Co. v. McDonald, 234 Ark. 744, 355 S.W.2d 174 (1962), we held that where a witness to an automobile accident is interrogated by the defendant about a written statement given to an insurance adjustor, the defendant must be prepared for the jury to know insurance is involved. But in those cases, the trial court had held the evidence was admissible, whereas here the trial court held it inadmissible, and our review is confined to determining whether reversible error occurred.
Appellants assert that the bias and pecuniary interest of a witness are not collateral matters and may always be shown to discredit him, citing Wright v. State, 133 Ark. 16, 201 S.W. 1107 (1918). They point to several factors they say could have affected Dr. Dickson’s bias: whether he was paid by St. Paul for his report and testimony; whether he was St. Paul’s insured and was being defended by St. Paul in other litigation; whether he had testified for St. Paul in other cases. But the bias in Wright v. State was of a different sort and has little relevance to this case. There, a witness for the prosecution had on numerous occasions expressed ill will toward the defendant and on appeal it was held that the evidence should have been received. The other arguments of bias come closer to the mark, but the answer is that the trial court permitted Dr. Dickson to be asked if he was paid for his report and for his testimony. He answered that he could not recall whether he was paid for the report, and assumed he was not; he said he was not being paid to testify, though if any payment was offered he would accept it. The other questions concerning St. Paul were not raised before the trial court, at least we find nothing in the record (the hearing in chambers was not transcribed) and whether these factors would have produced a different evidentiary ruling by the trial court would be speculation. Based on what was presented to him, we cannot say the trial judge abused his discretion by refusing to hold that the evidence of insurance was so probative of biased testimony as to outweigh the prejudice inherent in such evidence.
Appellants ask us to hold that the trial court abused its discretion in sustaining objections to questions asked of Dr. Edwards on cross-examination. On direct, Dr. Edwards was able to recall a number of details which were not on the hospital records. To test his memory of distant events, counsel asked him on cross-examination to describe how he had treated the patient he had seen just prior to Richard, and how many patients he had seen that day. Counsel asked what he would charge per hour for giving a medical deposition in Jonesboro, which the court also rejected. Appellants cite cases pointing out the duty of the trial court to permit a full, fair and reasonable cross-examination of a witness. Huffman v. City of Hot Springs, 237 Ark. 756, 375 S.W.2d 795 (1964), Trammel v. State, 193 Ark. 21, 97 S.W.2d 902 (1936), Arkansas State Highway Commission v. Dean, 247 Ark. 717, 447 S.W.2d 334 (1969). But we cannot say the trial court abused its discretion by these rulings. There are outer limits to cross-examination, which the trial court must fix, subject to limited review, and it isn’t shown appellants were unduly restricted.
Appellants complain that counsel for appellee was permitted to bolster the reputation of Dr. Edwards and of the Campbell Clinic in Memphis, where Richard was treated, without plaintiff’s having first attacked those reputations. Dr. Austin Grimes, called by the defense, was asked if he knew Dr. Edwards’ qualifications to practice orthopedics, answering that he was a qualified orthopedic surgeon. But the objection was not made until well after the answer was given and the issue does not rise to the level of reversible error. We think the same may be said of another witness’s laudatory reference to Dr. Willis Campbell, founder of Campbell’s Clinic, who had died some forty years earlier, of which appellants complain. Perhaps neither question was entirely proper, but some irrelevant comments intrude inevitably into almost every trial. The human impulse to lend credibility to one’s sources was not confined to the defense. Appellants’ medical witness, Dr. Shutkin, citing an article from a medical journal he was relying on, described the author as a “very famous orthopedic surgeon of international renown.”
Two arguments remain. First, appellants urge that a resume of Dr. Shutkin’s education, training and experience should have been admitted as an exhibit. But the trial court refused it because it was covered by the witness on direct examination and we cannot say this ruling was error. Second, appellants allege error in the trial court’s refusal to admit a copy of “Rules and Regulations For Hospitals and Related Institutions in Arkansas” compiled by the Division of Hospitals and Nursing Homes of the Arkansas State Department of Health. Regulation C, 4, (a) requires a complete history and physical work-up in every patient’s chart prior to surgery. Appellants contend that since Dr. Edwards did not complete the hospital records in this case until several days after the surgery, the regulations constitute some evidence that he was negligent. We disagree with the argument. Nowhere in the record is it suggested that there was a causal connection between Richard’s disability and the failure to complete the history and physical work-up prior to surgery. And the essential element of proximate cause is not met simply by this proffered exhibit. See Prosser on Torts, 4th Ed., § 41. On their face the regulations apply to hospitals and nursing homes and, obviously, the cited regulation cannot be taken categorically, because frequently circumstances are such that to delay surgery for paper work would endanger the patient. Without some explanation to the jury as to how the result in this case was affected by the failure to comply with the regulations, assuming they applied, we think the trial court properly refused them. Certainly, we cannot say appellants’ rights were substantially denied by the rejection of this evidence. See Rule 103, Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979).
The judgment is affirmed.
The Chief Justice and Justice Purtle dissent. | [
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Dunaway, J.
This is an appeal by Mary Hale ' Manier from a decree quieting title to certain property in Osceola, Arkansas, in appellee, Samuel Major Hodges, Jr.
In 1909, James P. Hale acquired this property by purchase and occupied it until his death on December 1, 1930. Mr. Hale died intestate leaving as survivors his widow, Mary E. Hale, and his daughter, Mary Hale Manier, his sole surviving heir-at-law.
On October 23, 1911, Hale and his wife executed a deed of trust to said property to one C. C. Ermen, to secure an indebtedness in the principal sum of $800, with interest at five per cent, per annum, due ‘‘ thirty days after the death of both of us.” The deed of trust and note were subsequently assigned to J. T. Coston, who in turn assigned them on May 4,1925, to the Times Publishing Company of Osceola.
Mary E. Hale on March 16, 1935, executed a deed to this property to the Times Publishing Company. That deed contained this recital:
“The consideration for this conveyance is the satisfaction of a mortgage held by Times Publishing Co. on said lot, and the assumption of payment of all taxes and assessments thereon, and the agreement on the part of Times Publishing Co. to pay me $5.00 per month, monthly as long as I live. An express lien is hereby retained on said lot for the payment of said sums.”
After the execution of this deed, which was duly acknowledged and also signed by appellant as a “witness,” the Times Publishing Company went into possession of the property, which was vacant at the time. One agreed monthly payment of five dollars was made to Mary E. Hale, who died April 13, 1935, about one month after she had executed the deed above mentioned.
On April 1, 1946, the Times Publishing Company by warranty deed conveyed the property to S. M. Hodges, Sr., who died intestate on December 14,1946. His widow Ethel, and son, the appellee, survived him. Ethel Hodges died December 31,1946.
Appellee brought this suit to quiet title on October 29, 1947. Appellant answered contending that appellee and his predecessors in title had held the property as mortgagees in possession, and prayed an accounting of the rents and profits, and a determination of the amount of the indebtedness then due. Appellee in reply pleaded the statute of limitations under more than seven years adverse possession, laches and estoppel.
The Chancellor found all issues in favor of the plaintiff and entered a decree quieting title in Samuel Major Hodges, Jr.
As opposed to appellant’s contention that appellee and those through whom he claimed title were mortgagees in possession, appellee maintains that the Times Publishing Company went into possession of the property under the deed of March 16, 1935, from Mary E. Hale. It is his contention that appellant had actual knowledge that the Times Publishing Company was in possession claiming to own the property in fee; and that seven years after the death of the life tenant, Mary E. Hale, its adverse possession ripened into title against the appellant.
The evidence clearly supports the Chancellor’s finding in favor of appellee. Appellant testified that Mr. Coston mailed the deed which her mother executed on March 16, 1935, to Mary E. Hale at Hot Springs where she resided with appellant. Appellant refused to sign the deed and objected to her mother doing so. However, when her mother insisted on executing the deed, appellant took her to a notary public and appellant signed the deed on its face as a “witness.” Mrs. Manier admitted that she knew the contents of the instrument.
Appellant testified that “ . . . I wrote Mr. Cos-ton and told him that I was in a position to take that note up and he said there was nothing I could do about it, so then I sent word to Mr. Hodges and told him that I thought that he was doing a terrible injustice to me and that I wasn’t satisfied with it and sooner or later he would hear from me.” Although the exact date of the letters here referred to is not shown by the record, it is evident that appellant knew from the time the deed was executed, that the Times Publishing Company «was claiming ownership of the Hale property.
It is undisputed that appellant made no effort to recover possession of the property, or even discuss the matter with Mr. Hodges, from the time of her mother’s death in 1935 until this action was brought in 1947. The possession of the Times Publishing Company, claiming under the deed from Mary E. Hale, became adverse to appellant at the death of the life tenant. See Bradley Lumber Co. of Arkansas v. Burbridge, 213 Ark. 165, 210 S. W. 2d 284, and cases therein cited at p. 171. Appellant therefore is barred by the seven-year statute of limitations from asserting any claim to the property in suit.
The decree is affirmed. | [
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Lyle Brown, Justice.
Appellants, ten in number, are the sole heirs of Wm. Middleton, who died intestate. Appellants sought to cancel a rental and option to purchase agreement executed between Wm. Middleton and appellee, Isiah Cline. The trial court denied appellants relief and ordered them to carry out the option to purchase agreement as requested by appellee in his cross-complaint. It was appellants’ contention that appellee was in arrears on his rental payments which they say resulted in a forfeiture of the agreement. On that critical point the trial court held the testimony to be completely opposite, which we take to mean evenly balanced; but the court held that any default in late payments had been waived by appellants.
The contract was executed between Middleton and Cline on April 15, 1966. By its terms Middleton rented to appellee, Cline, forty acres of land for a period of five years. The contract provided for a rental of $25.00 per month, beginning May 1, 1966, “and each month thereafter”. During the five year period, appellee had the option of purchasing the property for $11,886.81. It was provided that if all rental payments were made and the option taken, Middleton would convey good title to appellee. There was no provision for forfeiture; nor was there a “time is of the essence” clause in the contract.
The principal witness for appellants was Mary L. Robinson, a daughter of the deceased Wm. J. Middle ton. She was an administratrix of the estate and was responsible for rent collections from appellee. She said monthly payments were made to her and she executed receipts. According to her records, appellee failed to timely make payments in July, October, and November, 1968; in March, August, and October of 1969; and in February and May of 1970. However, she conceded that during those years her records showed that appellee made three “double payments”. According to her, that left six monthly payments not made. On cross-examination she was presented with a cancelled check for $25.00 for which she had no record of receiving. Taking that check into consideration, that left, according to her testimony, five unpaid monthly payments.
As to appellee’s attempt to exercise the option to purchase, Mrs. Robinson testified in substance: Appel-lee informed her in late 1970 or early 1971 that he desired to exercise the option; she did not tell him some monthly payments were in default; she said the heirs were opposed to the option to purchase because, in their opinion, their father had been overreached in executing the agreement. She conceded she continued to accept rental payments until 1971. Then she stopped cashing the checks, accumulating ten checks which she retained but did not cash.
Appellee testified he talked with Mrs. Robinson about exercising his option; that she put him off; that thereafter and on April 26, 1971, he had his attorney write a letter notifying Mrs. Robinson that he was ready and able to exercise the option; that as of that date he was current with his monthly payments; that he was unable, however, to find cancelled checks for July and October 1968; and that he recalled making some payments in cash and believed it was in 1968. He said after he verbally told Mrs. Robinson of his intent to exercise the option, he continued to make his rental payments until he wrote the letter in April 1971.
Appellee’s wife testified she acted as bookkeeper for the family; that she normally made the payments by check or by cash. She insisted they were current in their payments and that Mrs. Robinson never claimed they were behind until making the allegation in the lawsuit. She said she was unable to find some of the can-celled checks, that they could in fact have been lost.
Appellants’ first contention for reversal is that the trial court erred in not finding that appellee was delinquent in some of his monthly payments. The court found that “the testimony is diametrical on both sides as to whether there was an arrearage in the rentals to be paid”. An examination of the testimony hereinbefore abstracted leaves us in a position of being unable to say that the chancellor’s conclusion was in error. Appellants strenuously argue that the failure of appellee to produce checks or receipts for all payments conclusively sustains this point. On the other side of the coin, appellee and his wife insisted that they were current in their payments; that they sometimes paid in cash; and that some of their papers, accumulated over the period of some five years, could have been lost. It may have also been significant to the chancellor that appellants never claimed delinquency until the lawsuit was filed. Additionally, if appellee was delinquent, that fact would not of itself cause a forfeiture.
The second point for reversal is that the court was wrong in holding that appellants waived a right to forfeiture by accepting late payments and by failing to notify defendant of the breach. In connection with this point, there are four facts of significance which must be kept in mind. One, appellants accepted late payments in three different years and without protest. Two, appellants never notified appellee of any delinquency and intent to cancel. Third, there was no provision in the lease for forfeiture for failure to make payments on time. Fourth, there was no “time is of the essence” prb-vision in the lease. In view of those facts and in light of our pronouncements in two cases, we think the trial court was correct. One of those cases is Duncan v. Malcomb, 234 Ark. 146, 351 S.W. 2d 419 (1961). The lease in that case was for ten years with an option to renew for another ten years. The lease provided for forfeiture by appellee upon failure to pay the rent when due. Appellee made late payments of rent for the first two years and in the third year appellant demanded possession at a time when the rent was two months in arrears. No demand was made for the delinquent rent. The trial court held that appellant, lessor, had waived the requirement for prompt rental payments. We held that in the circumstances (receiving late payments without protest), appellant could hot declare a forfeiture without first giving reasonable notice of intent to cancel. Undoubtedly the notice required would be for the purpose of giving the lessee the opportunity of bringing his payments up to date and to be aware that in the future, no delinquent payments would be accepted. Quoting from Duncan, we also said: “Of course it is elementary that equity abhors forfeitures”.
The other case in point is that of Pierce v. Kennedy, 205 Ark. 419, 168 S.W. 2d 1115 (1943). Pierce rented lands to Kennedy for five years, the rent being $25.00 per month payable in advance. The lease contained an option whereby Kennedy could purchase the lands at any time within the five year period. The lease provided for termination of the option to purchase if there was any default in the payment of the rentals. Rents had been accepted which were not paid when due. This court refused to declare a forfeiture and quoting from a prior case said: “Where there has been a breach of a contract sufficient to cause a forfeiture, and the party entitled thereto, either expressly or by his conduct, waives it, equity will relieve the defaulting party from a forfeiture unless the violation of the contract was the result of gross negligence, or was willful or persistent”. In the case at bar we find no evidence that any delay in payment was caused by gross negligence, nor was there evidence of a willful and persistent course of conduct. The Pierce case quotes with approval from 32 Am. Jur., § 894, Landlord and Tenant: “A court of equity, even in the absence of special circumstances of fraud, accident, or mistake, may relieve against a forfeiture incurred by the breach of a covenant to pay rent, on the payment or tender of all arrears of rent and ínteres! by a defaulting lessee”.
Finally, it is argued that a guardian should have been appointed for Wm. Middleton, Jr., a minor, one of the appellants (plaintiffs below). Appellants argue that no judgment on appellee’s cross-complaint should be entered because the minor came into the case by his mother as next friend. We have a statute, Ark. Stat. Ann. § 27-825 (Repl. 1962), which requires the defense of an infant to be made by a guardian. From best we can tell by the record, the objection to the absence of a guardian was advanced in apt time. That fact distinguishes this case from Cannon v. Price, 202 Ark. 464, 150 S.W. 2d 755 (1941), which at first blush may seem to be out of harmony with our holding in the case at bar.
We hold that the case should be affirmed with respect to all parties except as to the minor; as to the latter, the cause is reversed.
Affirmed in part; reversed in part.
Harris, C. J., not participating. | [
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Steele Hays, Justice.
Appellant Kenneth Ray Clements was convicted of shooting and killing Conway Police Officer Ray Noblitt. The jury convicted him of capital murder and sentenced him to death by lethal injection. On October 8, 1990, this court reversed the conviction and remanded for a new trial because the prosecutor failed to timely provide him with the testimony of one of the state’s witnesses. See Clements v. State, 303 Ark. 319, 796 S.W.2d 839 (1990). The case was retried on February 11, 1992 and Clements was convicted of second degree murder and sentenced to twenty years in prison. As his sole issue on appeal Clements argues that the trial court erred in denying his motion to dismiss for lack of a speedy trial. We find no merit in his argument and affirm.
Pursuant to Ark. R. Crim. P. 28.1, the state had twelve (12) months from the time provided in Rule 28.2 to bring the appellant’s case to trial, excluding only such periods of necessary delay as are authorized in Rule 28.3. Appellant contends the time for trial commenced running on October 8, 1990, the day that the case was reversed and remanded. However, the time actually began to run anew on October 26, 1990, the date the mandate was issued by the Supreme Court Clerk. Ark. R. Crim. P. 28.2 states that if a defendant is to be retried following an appeal, the time for trial shall commence running from the date of the order granting a new trial or remand. The decision is not final until the mandate is issued because a Petition for Rehearing is cognizable within seventeen (17) days from the date of the decision pursuant to Ark. Sup. Ct. R. 20. In addition, the trial court does not have jurisdiction of the case until the mandate is issued. See Morton v. State, 208 Ark. 492, 187 S.W.2d 335 (1945).
Because appellant’s trial on February 11, 1992 was 108 days outside the twelve month speedy trial period from the date the mandate was issued on October 26, 1990, he presented a prima facie case of violation of his right to a speedy trial. Once an appellant presents a prima facie case of violation of speedy trial, the burden shifts to the state to show that the delay is the result of the appellant’s conduct or otherwise legally justified. Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993); Meine v. State, 309 Ark. 124, 827 S.W.2d 151 (1992). In each of the following five time periods, the state met its burden of proving that any delay was chargeable to Clements or was otherwise justified.
THE PERIOD FROM DECEMBER 31, 1990 TO MARCH 25, 1991
On December 31, 1990, Circuit Judge Francis T. Donovan recused from the case and requested the Arkansas Judicial Department to appoint a new trial judge. This was necessary because Judge Donovan was leaving office and the other two judges in Faulkner County with criminal jurisdiction, the Honorable David Reynolds and the Honorable Watson Villines, would be disqualified from the case. Judge Reynolds had acted as deputy prosecuting attorney during Clements’ first trial and Judge Villines was defense counsel in Clements’ first trial. On March 25, 1991, the Honorable Floyd Lofton was assigned to hear the case. This period is excludable under Ark. R. Crim. P. 28.3(h) as a period of delay “for good cause.” The state could have done nothing further to expedite the trial during the time that Judge Donovan recused and Judge Lofton was appointed. This delay was necessary and reasonable under the circumstances.
Appellant erroneously relies upon Art. 7, sections 21 and 22 of the Arkansas Constitution and Arkansas Supreme Court Administrative Order No. 1 published in In re: Changes to the Arkansas Rules of Civil Procedure, Abolishment of the Uniform Rules of Circuit and Chancery Courts, and Publication of Administrative Orders, 294 Ark. 664, 742 S.W.2d 551 (1987) to argue that a special election to elect a judge should have been held. These provisions only apply when the circuit court judge’s office is vacant at the commencement of the term of court or if the judge fails to attend or is disqualified. No special election was required in this case. The correct procedure of waiting until the Arkansas Judicial Department appointed Judge Lofton was followed. Therefore, this period is excludable.
THE PERIOD FROM JUNE 17, 1991 UNTIL SEPTEMBER 3, 1991
On April 23, 1991, Judge Lofton appointed Kenneth Suggs and Richard Atkinson to represent Clements and scheduled trial for June 24,1991. At an omnibus hearing on June 17,1991, Mr. Suggs asked to be relieved as counsel. His request was denied. Mr. Atkinson then requested a continuance due to an inability to be ready on the June 24th trial date. Judge Lofton found both Atkinson and Suggs negligent, held them in contempt of court, fined them $1,000.00 each, and removed them from the case. Judge Lofton immediately appointed Ray Hartenstein as defense counsel and asked him if he would be ready to go to trial on the previously set trial date to which he received a negative response. The court recessed to allow Mr. Hartenstein to go to his office to get his calendar. When the court reconvened, Judge Lofton announced that the motion for continuance was before the court. The court appointed Blake Hendrix to assist Mr. Hartenstein. Over the state’s objection, Judge Lofton granted a continuance until September 23, 1991.
Appellant first argues that this period is not excludable because there is no written order or docket entry setting forth the excludable period. Under Ark. R. Crim. P. 28.3(i), the trial court should enter written orders or make docket notations specifying the reasons for the delays and the specific dates or number of days to be excluded. Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991); Cox v. State, 299 Ark. 312, 772 S.W.2d 336 (1989). However, a trial court’s failure to comply with Rule 28.3(i) does not result in automatic reversal. McConaughy v. State, 301 Ark. 446, 784 S.W.2d 768 (1990). We have held that when a case is delayed by the accused and that delaying act is memorialized by a record taken at the time it occurred, that record may be sufficient to satisfy the requirements of Rule 28.3(i). See Key v. State, 300 Ark. 66, 776 S.W.2d 820 (1989); Kennedy v. State, 297 Ark. 488, 763 S.W.2d 648 (1989).
Here, the docket sheet reflects “Jury Trial 9-3-91” and that attorneys Suggs and Adkisson were removed from the case. Also, the continuance was adequately memorialized on record at the hearing on June 17, 1991. This was sufficient to satisfy the necessary requirements.
Clements also argues that he was not responsible for the continuance. He notes that the oral motion made by his attorney was denied by the court and the ensuing continuance was the result of the court’s sua sponte initiative and not that of the defense attorneys.
Under Ark. R. Crim. P. 28.3(c), a period of delay is excluded only if the continuance was granted at the request of the defendant or his counsel. Matthews v. State, 268 Ark. 484, 598 S.W.2d 58 (1980); Campbell v. State, 264 Ark. 372, 571 S.W.2d 597 (1978). In the present case, the trial judge asked Clements if he desired to go to trial as scheduled and he replied, “I’m not happy with him.” “I’m not ready to go to trial.” Also, the prosecution objected to the continuance. Therefore, the delay in the trial was attributable to the actions of the appellant and not to the State. As such, this period is excludable as a delay for “good cause”. See Lewis v. State, 307 Ark. 260, 819 S.W.2d 689 (1991).
THE PERIOD FROM JUNE 17, 1991 TO OCTOBER 7, 1991
Clements argues that the period from the June 17, 1991 pretrial hearing, in which his counsel of choice was removed from the case, and October 7, 1991, the date on which this court reversed Judge Lofton’s removal of Richard Atkinson and placed him back on the case, is not excludable. (See Clements v. State, 306 Ark. 596, 817 S.W.2d 194 (1991) in which we held that the trial court’s removal of Atkinson violated Clements’ sixth and fourteenth amendment rights to counsel under the United States Constitution and his right to counsel under Art. 2, Section 10 of the Arkansas Constitution.) Appellant contends that he was without his counsel of his choice during this period due to Judge Lofton’s erroneous ruling. He relies upon Glover v. State, 307 Ark. 1, 817 S.W.2d 409 (1991) where we held that a two month period was not excludable when defense counsel was allowed to withdraw without the knowledge of the defendant and the court waited two months to appoint new counsel.
Although Clements was without counsel of his choice during this time, it is excludable because it involved an interlocutory appeal filed July 8, 1991. Ark. R. Crim. P. 28.3(a) specifically excludes periods in which an interlocutory appeal is pending. Also, as we noted above, the appellant was responsible for the continuance which was granted at the June 17th hearing.
THE PERIOD FROM SEPTEMBER 3, 1991 TO JANUARY 14, 1992
At a hearing on September 3, 1991, Attorney Hartenstein asked that a previous oral order by Judge Lofton allowing the payment of Tommy Crosthwait, a private investigator, be honored. The court stated that Mr. Crosthwait would not be paid at that point. Mr. Hartenstein then moved for a continuance stating that it would be impossible for him to be ready for trial without the research of the investigator. The continuance was granted and the trial was set for January 14,1992. Judge Lofton then recused from the case on September 4, 1991, and the Honorable Randall Williams was appointed on September 9, 1991. A nunc pro tunc order reflecting the continuance was later prepared by the prosecution, signed by Judge Lofton and filed on October 8, 1991. In a letter to all counsel dated November 20, 1991, Judge Williams acknowledged the continuance/setting order signed by Judge Lofton.
Appellant argues that the order is invalid because his counsel was not present nor apprised of the ex parte order until after November 20, 1991, the date on which he received Judge Williams’ letter. Clements claims that his Sixth Amendment Right to Counsel was violated and that he was unable to make a contemporaneous objection to the order being entered.
Appellant concedes he was aware of the order at least as of November 20, 1991. However, he did not voice any disagreement until February 10, 1992, the day before trial. We have stated that if a defendant discovers a docket error which affects his speedy trial rights or takes exception to the wording of an order, it is incumbent on him to bring the matter to the attention of the trial court within a reasonable time. See Lewis v. State, supra: Anderson v. Hargarves, Judge, 272 Ark. 259, 613 S.W.2d 587 (1981). If appellant believed that Judge Lofton’s order charging the continuance to him was in error, he should have immediately brought this to the court’s attention.
Clements also contends that the backdated nunc pro tunc order is invalid as a matter of law. A nunc pro tunc order may be entered to make the court’s record speak the truth or to show that which actually occurred. Murry v. State Farm Mutual Automobile Ins. Co., 291 Ark. 445, 725 S.W.2d 571 (1987). However, a court may not change the record to do that which should have been done but was not. Bradley v. French, 300 Ark. 64, 776 S.W.2d 355 (1989). In addition, appellant claims that because Judge Lofton had recused from the case, he was without jurisdiction to sign any nunc pro tunc order.
As in Lewis v. State, supra, we believe that the order entered after the continuance was granted was sufficient. In Lewis, we held that an order entered two months after a continuance was granted was sufficient. Here, the order was entered thirty-five days after the continuance was granted. Because Judge Lofton recused from the case the day after he granted the continuance, the administrative oversight of not filing the order immediately is understandable and the later correction of the record was permissible.
As stated above, a review of the record might be enough to satisfy the requirements of Ark. R. Crim. P. 28.3(i). See Hubbard v. State, supra; McConaughy v. State, supra, Key v. State, supra, and Kennedy v. State, supra. See also Hudson v. State, 303 Ark. 637, 799 S.W.2d 529. The record of the September 3, 1991 hearing indicates that it was appellant who requested the continuance which delayed the trial. The state was prepared to try Clements within the speedy trial period and objected to the continuance. The record also demonstrates that all of the parties understood that a continuance was being granted. Because the record itself demonstrates that this delay was attributable to Clements and was memorialized in the proceedings at the time, this period is excludable under the circumstances.
THE PERIOD FROM JANUARY 14, 1992 TO FEBRUARY 11, 1992
On December 12,1991, Judge Williams recused from the case. The next day, the Honorable Fred Davis was appointed. Judge Williams held a hearing on December 18, 1991 and reset the case from January 14,1992 to February 11,1992. An order was signed on December 26,1991 and filed with the Circuit Clerk on December 27,1991. The order states that the continuance was with the approval of all parties and that the period of time shall be an excluded period. This period is excludable as evidenced by its own terms. All parties agreed to the delay and the order was properly entered.
In conclusion, all of the delays in bringing Clements to trial were justified under the circumstances of this case. When the relevant periods are excluded the appellant was not denied his right to a speedy trial.
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Humphreys, J.
Appellant was indicted for rape in the circuit court of Pulaski County, First Division, and upon the trial of the charge was convicted of the crime of carnal abuse, and was adjudged to serve a term of five years in the 'State penitentiary, as a punishment therefor, from which is this appeal.
Appellant first contends for the reversal of the .judgment because the- trial court overruled a demurrer to the indictment. It is argued that the indictment was fatally defective, because it did not allege that the act complained of -by the State was an unlawful act. Section 2717, C. & M. Digest, defining rape, does not use the word “unlawful,” therefore, it was not necessary to use same in an indictment for the crime. State v. Murphy, 43 Ark. 178.
Appellant next contends for the reversal of the judgment because the trial court ruled that jurors W. R. Crow and C. R. Croft were qualified. On their voir dire examination each stated that he had formed an opinion regarding the case, based upon rumor, but that he would disregard the opinion if chosen as a juror and try and decide the case upon the testimony which would be adduced, under the law as pronounced by the court. Under the rule reiterated in the case of Ham v. State, 179 Ark. 20, 13 S. W. (2d) 805, both were qualified, notwithstanding they had formed opinions based upon rumor.
The disqualification of C. R. Croft is also urged because he admitted that he was prejudiced against the crime of rape. All law-abiding citizens are prejudiced against crimes of this nature, and, were the rule contended for pronounced by this court, it would be next to impossible to find law-abiding veniremen toi sit as jurors in such cases.
Appellant next contends for the reversal of the judgment because Chester Puller had formed and expressed an opinion which he had concealed on his voir dire examination. Affidavits of several parties were introduced to the effect that Puller was biased against appellant, as shown by expressions of his guilt in conversation with affiants and with others. These affidavits were contradicted by Puller, which presented a conflict in the evidence. The finding of the trial court, on conflicting evidence, that a juror was qualified, will not be disturbed on appeal. Pendergrass v. State, 157 Ark. 376, 248 S. W. 914.
Appellant next contends for the reversal of the judgment because there is no substantial evidence to support the verdict. The prosecutrix testified that she was under sixteen years of age, and that appellant had sexual intercourse with her in his apartment, forcibly and against her will. The law does not require the evidence of the prosecutrix to be corroborated in order to convict for the crime of carnal abuse. It is argued, however, that the testimony of the prosecutrix is wholly discredited by expert testimony to the effect that it was impossible for a normally developed man to penetrate her person. The slightest penetration was sufficient in law, and it cannot be said from the physical facts in the instant case that there was no penetration at all. Dr. W. E. Gray testified that he made an examination of the prosecutrix when brought to the hospital shortly after the alleged crime was committed, and that, although he found no external or internal laceration, tears or bruises, he found a drop or two of blood and discovered dn the vaginal canal abundance of spermatozoa. According to the State’s witnesses, appellant admitted having had sexual intercourse with the prosecutrix, but claimed that she told him that she was eighteen years of age and consented to the act. He denied that he made such admissions.
Although the prosecutrix was contradicted to some extent by appellant and his witnesses, it cannot be said that the testimony introduced by the State was wholly and entirely discredited. The judgment is supported by evidence of a substantial nature.
Appellant next contends for the reversal.of the judgment because Dr. Gray was permitted to testify concerning an examination he made of the prosecutrix a few hours after the alleged crime was committed. The introduction of his testimony was objected to on the ground that it was privileged. The doctrine of privileged communications only extends to the physician’s patients and himself. A defendant in a prosecution for crime has no right to claim the protection. Davenport v. State, 143 Miss. 121, 108 So. 433, 45 A. L. R. 1448.
Appellant next contends for tlie reversal of the judgment because the trial court allowed the prosecutrix to testify that Allen Frey threw her on the hed and tried to have sexual intercourse with her immediately after appellant had accomplished his purpose. Appellant and Frey had taken the prosecutrix and another girl from the State Fair grounds to appellant’s apartment in the city of Little Rock, and, according to the State’s evidence, had detained them for the purpose of raping them. This occurred, if at all, during their detention, and was a concomitant circumstance tending to prove the crime with which appellant was charged. It was clearly admissible as a circumstance tending to show that appellant had the prosecutrix in his apartment for immoral purposes.
Appellant next contends for the reversal of the judgment because the¡ court allowed the prosecuting attorney on cross-examination to ask him whether his wife had not obtained a divorce from him on account of his misconduct with other women. This was admissible as tending to show an abnormal inclination or disposition on appellant’s part to have sexual intercourse with women, as well as to reflect on his credibility as a witness.
Appellant next contends for the reversal of the judgment because the court allowed the prosecuting attorney to cross-examine him relative to his acquisition of whiskey. The testimony developed that he was drinking on this occasion, and we think the questions propounded by the prosecuting attorney touching this matter were admissible as tending to reflect on his credibility as a witness.
Appellant next contends tf:or the reversal of the judgment because the court refused to give his requested instruction on assault and battery. Assault and battery is not a necessary element of carnal abuse. The crime may be committed with the consent of the prosecutrix, hence, force is not a necessary essential to the commission of the crime, as is the case in rape. Appellant was acquitted of the rape charge, so he was not prejudiced by the re fusal of the court to give his requested instruction, on assault and battery.
Appellant next contends for the reversal of the judgment because the prosecuting attorney was permitted to explain why he did not use the other girl who was in the apartment as a witness. This explanation was allowed because appellant’s attorney had criticised the prosecuting attorney for not calling her as a witness. The explanation was invited error,- if error at all. In permitting this explanation, the court admonished the jury not to consider the statement of the prosecuting attorney as to what she would have testified had she been introduced. The admonition cured the error.
Lastly, appellant contends for the reversal of the judgment because the court refused to permit him to introduce the police record showing that a window under appellant’s apartment had -been.broken by a burglar on the night the alleged carnal abuse occurred. There was evidence in the record tending to show that the girls left the apartment on account of the noise from a broken window. If proof of this character was pertinent and competent, it should have been made by a witness cognizant of the fact, and not by a police record in another case in which none of the interested parties were participants. The State would not be bound by facts developed in a different case from the one upon which he was being tried.
No error appearing, the judgment is affirmed. | [
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John I. Purtle, Justice.
This is another Rule 54(b) case. Michael Dooley filed suit against Eddie Gramling, Charles Gramling and American Deposit Insurance Company (later amended to substitute Southeastern Fidelity Insurance Company). The trial court granted a summary judgment in favor of Charles Gramling. Notice of appeal from that order was given, and the case was filed and fully briefed in this court.
ARCP Rule 54(b) has caused the dismissal of many cases. See Bryan Farms, Inc. v. State, 295 Ark. 180, 747 S.W.2d 115 (1988); Pitts v. Sipes, 293 Ark. 340, 737 S.W.2d 647 (1987); Rone v. Little, 293 Ark. 242, 737 S.W.2d 152 (1987); Kilcrease v. Butler, 291 Ark. 275, 724 S.W.2d 169 (1987); Tackett v. Robbs, 293 Ark. 171, 735 S.W.2d 700 (1987); Hall v. Lunsford, 292 Ark. 655, 732 S.W.2d 141 (1987); Murry v. State Farm Mutual Auto Insurance, 291 Ark. 445, 725 S.W.2d 571 (1987); and Wilson v. Wilson, 270 Ark. 485, 606 S.W.2d 56 (1980).
In the case before us multiple claims were made against three separate defendants. Two defendants remain, and all the claims are yet to be decided by the trial court.
Appeal dismissed. | [
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Robert H. Dudley, Justice.
Appellant, a taxpayer, filed a complaint seeking a declaratory judgment. She pleaded that appellees had entered into a contract involving the sale of county property which constituted an illegal exaction in violation of Article 16, § 13 of the Constitution of Arkansas (1874). In response, appellees filed a motion for summary judgment which was accompanied by supporting affidavits. No counter-affidavits or other controverting evidence was offered by appellant. The trial court found that no genuine issue existed as to any fact, that appellees by their affidavits had made a prima facie showing that no illegal exaction had taken place and that a summary judgment should be granted. We affirm. Jurisdiction is in this Court because the constitutionality of a county ordinance is involved. Rule 29 (1), (a) and (c).
From the affidavits and attached exhibits the following evidence is established. Prior to 1976 the citizens of Craig-head County voted to finance and construct a county hospital. General obligation and revenue bonds were issued and the construction of buildings was completed in January, 1976. The county judge appointed a seven member Board of Governors who operated the 98 bed hospital until January, 1978. At that time the Board of Governors leased the hospital buildings for ten years to appellee Craighead Hospital Association, Inc., a private nonprofit corporation. The nonprofit corporation borrowed a substantial amount of money, purchased equipment, entered into contracts with physicians and other medical staff personnel, established employee benefit programs including a pension plan, obtained accreditation and is seeking a certificate of need for governmental approval of 62 additional beds. The ten year lease will not expire until 1988.
In 1981, the quorum court voted to sell the hospital buildings. The hospital was leased until 1988 so the quorum court chose to request bids, not j ust on the lessor’s interest in the buildings but on the complete going business. Obviously, such a procedure required the agreement of the lessee.
On November 20, 1981, the county issued a 15-page request for bids which among many other things, required an offeror to do the following:
Retain employees for at least six months.
Retain employee benefit programs for at least 5 years.
Retain existing contracts with physicians and surgeons.
Retain emergency room service, intensive care services and other named specialty fields.
Accept for payment Medicare, Medicaid .and other governmental supported programs and provide limited uncompensated care for indigents.
Continue to seek governmental approval for 62 additional beds.
Maintain accreditation.
Assume all of the indebtedness of the nonprofit corporation.
Five offers to purchase were received. On February 1, 1982, the quorum court recommended that the county judge enter into a memorandum of sale with Methodist Health Systems, Inc., a subsidiary of Methodist Hospitals of Memphis. On February 5,1982, the county and Methodist entered into a memorandum of understanding and on March 5, 1982, the nonprofit corporate lessee and Methodist entered into an agreement restructuring the nonprofit corporation so that Methodist would be the sole stockholder of the corporation. Under this agreement the restructured corporation would retain title to all of its assets, including the lease. Methodist agreed to pay all of the debts of the nonprofit corporation which amounted to $1,642,243 and agreed to pay the county a total of $10,757,058.
Appellant brought the suit against appellees, who are the county officials involved, the nonprofit corporation and Methodist, alleging that the payment of the debts of the nonprofit corporation constituted an illegal exaction. The trial court ruled that there was no genuine issue as to any material fact, that appellees had made a prima facie showing in favor of the motion for summary judgment and therefore the motion should be granted. We affirm. Once a prima facie showing has been made in support of a motion for summary judgment, the opposing party must discard the shield of formal allegations and meet proof with proof to show a genuine issue of fact. Spickes v. Medtronic, Inc., 275 Ark. 421, 631 S.W.2d 5 (1982). In this case that genuine issue of fact was not shown to exist. The only proof is that the quorum court chose not to sell the buildings alone. The lessor, the county, and the lessee, the nonprofit corporation, combined to sell the whole interest as a fully functioning hospital with staff and equipment intact. The contested payment of the lessee’s outstanding debt is nothing more than a method to acquire all of the lessee’s assets, including the remaining six years of the lease. There is no proof of an illegal exaction solely because the county sold its interest at the same time the lessee sold its interest.
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Ed. F. McFaddin, Justice.
This is an election contest involving the Democratic nomination for County Judge of Lawrence County. Appellant and appellee were the only two candidates for said nomination in the August 8, 1950, Primary Election; and, on the face of the returns, appellee received 2,270 votes and appellant received 2,265 votes.
The Democratic County Central Committee, refusing a recount, certified appellee as the nominee; and this action was filed by appellant on August 15,1950, claiming 224 illegal votes had been counted for appellee. On August 19 appellee filed a pleading which was a motion to dismiss and also an answer and cross-complaint. Among other matters, the motion sought to dismiss the complaint on the claim that the printed list of poll tax payers had not been legally printed in exact compliance with § 3-118, Ark. Stats. The Circuit Court judgment was based on that point, and resulted in the dismissal of the appellant’s complaint. We therefore discuss the evidence on this one point and the holding thereon.
The applicable Statute (§ 3-118, Ark. Stats.) requires that these five things be done:
(1) — Not later than October 15 each year the Collector shall deliver to the County Clerk a list — duly arranged — of all persons who had paid poll tax on or before October 1 of that year, with said list duly authenticated by affidavit of the Collector.
(2) — The County Clerk shall at once record this list of poll tax payers in a well bound book.
(3) — The County Clerk, not later than October 22, shall deliver to the County Election Commissioners a certified copy of the list furnished him by the Collector.
(4) — The County Clerk shall, at all times, keep in his office, for public inspection, the original list of poll tax payers, as furnished him by the Collector.
(5) — The County Election Commissioners shall have the list of poll tax payers (furnished by the Clerk under (3) above) printed so that sufficient copies will be available to furnish one to each Judge at each General or Special Election.
In the case at bar, requirements (1) and (2) were strictly complied with ; but requirements (3), (4), and (5) were complied with only as follows:
(a) instead of making a certified copy of the list furnished by the Collector and delivering such copy to the Election Commissioners, the County Clerk — as had been the custom in that County for many years — delivered to the Election Commissioners the original list furnished by the Collector to the County Clerk; and thus the original list was not kept at all times by the County Clerk for public inspection; and
(b) when the Election Commissioners received the original list of poll tax payers from the Clerk, the list was in a ledger, with pages securely fastened; in order to facilitate the work of the printer, the pages were carefully cut from the ledger; and after the printed list (re quirement (5) of § 3-118, Ark. Stats.) liad been prepared, the unfastened pages were returned to the Clerk but still contained in the same ledger cover.
The Circuit Court held that these aforementioned items (a) and (b) were not in substantial compliance with the requirements of the Statute and that the printed list of poll tax payers, offered in evidence, had no verity. 'Thus, the only question for decision on this appeal is whether, under the facts here presented, the printed list of voters was in substantial compliance with § 3-118, Ark. Stats., so as to be entitled to use in a contest after an election had been conducted.
We have held that prior to the election the provisions of § 3-118 are mandatory but after the election the requirements are directory, and that substantial compliance with the Statute will allow the printed list to be used in an election contest. In Trussell v. Fish, 202 Ark. 956, 154 S. W. 2d 587, we were considering a printed list from which the Collector’s affidavit was entirely omitted. After reviewing our earlier cases, we said:
“In most of the cases where effect of the collector’s failure to make the affidavit is discussed (see third footnote) it is said that there must be substantial compliance with the statute, and to this rule we adhere. The question is, What is substantial compliance? and it follows that proof in a particular case regarding intent and effect must first be considered before an answer can be formulated.
“There would be a subversion of purpose and a sacrifice of popular will if we should say that in a primary election the unintentional failure of a ministerial officer to perform strictly all functions which are made mandatory with respect to verification of poll tax lists, continues to be imperative after the lists, unaffected by fraud, and substantially correct in all other essentials, have performed the service intended by the legislative authority. ’ ’
In the case at bar the Election Commissioners returned to the County Clerk the ledger which contained the original list of poll tax payers prepared by the Collector ; and with that original list before him, the County Clerk answered questions as follows:
“Q. You have referred to the original list that was given to you by the collector?
“A. Yes, sir, and this is it. (indicating)
“Q. Am I right; I find here a binding to a book, all the pages in the binding are loose- is that right?
“A.- Yes, sir, the printers did that so they could print it.
“Q. These loose pages and this binding we have here, yon have referred to, you say that amounts to the original list given yon by the collector?
“A. That is right.
‘ ‘ Q. The original list was taken by you and turned over to the printer in Walnut Ridge?
“A. To Mr. Bland, he is a printer and an election commissioner.
“Q. Were these pages, that are cut out, cut out by the printer?
“A. He said he did.
“Q. Do you know yourself who cut them out, did you see him?
“A. No.
‘‘ Q. They were cut out when you got the book back?
“A. Yes, sir.
“Q. How long was the original list out of your hands, and out of the county clerk’s office?
“A. I don’t know, long enough for Mm to print it, I guess.”
Of course the County Clerk should have literally followed § 3-118, Ark. Stats., and the previous custom in that County is no justification for such failure; but we cannot hold that — after an election — the integrity of the printed list had been destroyed because the County Clerk delivered the original list to the Election Commissioners, and the printed list was prepared from the original list, and the original list was returned to the County Clerk. It is argued that when the 250 pages were separated, one from the other, in order for the printer to set the type for the printed list, that such act constituted a fatal mutilation of the original list of poll tax payers. This original list is before us, just as it was introduced in evidence; each page is numbered; the handwriting is clear and legible; voters are arranged by Townships — all as required by Statute. As a matter of fact, a better prepared and more legible list of poll tax payers is seldom to be found. Mrs. Morgan, the Collector, testified that she prepared and delivered the list to the County Clerk, as required by law; and that it contained her certificate. She admitted that possibly one or two persons had paid poll tax whose names she did not find on her list; and stated that until she had time to check the list line by line, she could not definitely swear that there had been no change in it; but she said that the list returned by the printer to the Clerk, and offered in evidence, looked like the original list that she had turned over to the Clerk; and that she did not see anything in the list different from what it contained when she delivered it to the County Clerk.
We have detailed all the evidence concerning the mutilation of the original list in order to show that there is no conflict in the evidence, and no suggestion of fraud. It is merely a question of drawing the legal conclusion from admitted facts; and we conclude that there was a substantial compliance with § 3-118 of Ark. Stats, so that the integrity of the printed list, in this case, had not been destroyed; and that the printed list could be used in a contest after an election had been held. Such being true, it necessarily follows that the judgment of the Circuit Court is reversed and the cause is remanded.
Holt, J., not participating.
The complaint gave the number of each such claimed illegal ballot, the name of the person voting, and the box and precinct in which such vote was cast and counted. Two hundred and twenty-four votes were claimed illegal for reasons as follows: 121 voters had no poll tax receipt; 28 absentee ballots were so irregular as to be void; 21 voters were “moved, in”; 40 persons voted in the wrong precinct; 2 illiterates had been mis-voted; 7 ballots of maiden voters were so irregular as to be void; and 5 persons had “voted” without going to the polls.
The list, as delivered to the Election Commissioners, actually contained the Clerk’s certificate that the list had been recorded.
In order to make a prima facie case as a basis for appeal, it was incumbent on the contestant (appellant here) to show that at least six votes (a number in this case sufficient to overcome appellee’s majority) had been illegally cast. To make such prima facie case, the appellant offered to prove that 110 persons who voted for appellee in the election did not have poll tax receipts, as shown by the printed list. The Circuit Court held such proof insufficient, since the proof was based on the printed list which the Court held to be without verity. | [
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Conley Byrd, Justice.
Appellant, Rembert Lee Hunt, to reverse a felony conviction for assaulting an officer with a deadly weapon, Ark. Stat. Ann. § 41-2802 (Supp. 1971), contends that the evidence is insufficient and the trial court erred in refusing to admit a glass into evidence.
The record shows that Officer Larry Dill, in street dress, and two other uniformed officers of the Little Rock Police Department went to a club to arrest two black female suspects. After the females were taken into custody, appellant, according to some of the witnesses, made inquiry of the officers as to where they were taking the sus pects. Appellant then assaulted Officer Dill with a drink glass which was broken during the assault. Officer Dill suffered a cut behind his ear requiring several stitches. Some of the witnesses described the glass used by appellant as an eight ounce glass. At the trial the court refused to permit áppellant to introduce a four ounce glass into evidence.
In Jackson v. State, 214 Ark. 194, 215 S.W. 2d 148 (1948), we held that any object likely to produce death or great bodily harm could be a deadly weapon. We find no merit in appellant’s contention that the evidence is insufficient.
Neither can we find merit in the contention that the trial court erred in refusing to permit the four ounce glass to be introduced into evidence. We cannot say that it was sufficiently identified as being similar to the glass used in the assault.
Affirmed. | [
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Robert L. Brown, Justice.
This appeal arises out of an automobile accident in which the drivers of both vehicles, Cheryl Holcombe and Terry Arthur Van-Beber, died. Two passengers in Holcombe’s vehicle, Donna Shepherd and Kay Snow, were also killed and a third passenger, Kelli Shawn Wheeler, was permanently injured. The appeal and cross appeal center upon the appropriate amount of underinsured benefits to be paid by the appellee, State Auto Property and Casualty Insurance Company, to the appellants. Issues are also raised concerning the propriety of a 12 percent penalty assessed against State Auto and what are proper attorneys’ fees and prejudgment interest under these circumstances.
On May 17, 1989, Van-Beber was operating his car, while intoxicated, in the wrong direction on Interstate 40 in Pope County. His vehicle collided with the car owned and operated by Cheryl Lynn Holcombe with her three passengers. All four women were employed by Arkansas Best Corporation and were in the course of their employment at the time of the accident. VanBeber’s car was insured for $50,000 bodily-injury liability coverage. Holcombe’s vehicle carried underinsurance coverage through the appellee, State Auto, with policy limits of $300,000.
The appellants, who are the personal representatives of the deceased women’s estates and Kelli Sharon Wheeler and her husband, Darrell Wheeler, pursued litigation against VanBeber’s estate, alleging negligence. The Wheelers and the estates of Shepherd and Snow eventually also cross-claimed against the estate of Cheryl Lynn Holcombe after a State Police accident reconstruction report was released indicating that the Holcombe vehicle was traveling in excess of 77 miles per hour at the point of impact. Because damages of the victims exceeded Van-Beber’s resources, the appellants made demand on State Auto on July 31, 1989, for the $300,000 underinsurance policy limits on the Holcombe vehicle without regard to any offsets. The demand was refused.
From July 1 through July 3, 1991, a trial was held on the negligence issues, and the jury assessed 100 percent negligence against Van-Beber and no negligence against Holcombe. A verdict was rendered in favor of the appellants against Van-Beber in the amount of $1,216,168.85.
Later, on November 13, 1991, a hearing was held on stipulated facts on the matter of State Auto’s underinsurance, with the principal issue being whether State Auto was entitled to offset workers’ compensation benefits and the liability proceeds in the amount of $50,000 paid by Van-Beber’s carrier. Arkansas Best Corporation, as the employer of the four victims in the Holcombe vehicle, had paid the following workers’ compensation benefits to the victims as of October 21, 1991: Wheeler — $78,131; Shepherd — $44,566; Snow — $29,344; Holcombe — $29,494. The amounts totaled $181,535.
The trial court announced its decision and judgment was subsequently entered on December 12, 1991, in favor of the appellants and against State Auto in the amount of $250,000, with the trial court finding that the carrier was entitled to offset the $50,000 Van-Beber liability policy against its $300,000 policy limits. The trial court also found that Arkansas Best was entitled to a two-thirds workers’ compensation lien on the $50,000 Van-Beber benefits after deducting trial expenses of $9,200 and a one-third attorneys’ fee to be divided among the appellants’ attorneys. The court refused, however, to permit State Auto to offset the amount of workers’ compensation payments.
Included in the judgment were attorneys’ fees of $30,000, to be divided among the appellants’ three attorneys as follows: $20,000 to Ronald Metcalf, counsel for Shepherd and Wheeler; $5,000 to Roy Gean, Jr., counsel for Snow; and $5,000 to Phillip Kinsey, counsel for Holcombe. Prejudgment interest was calculated at six percent on the $250,000 from July 31, 1989, to December 12, 1991, and ten percent thereafter. The trial court held that the 12 percent penalty provision for failure to pay insurance benefits upon demand under Ark. Code Ann. § 23-79-209 (Repl. 1992) did not apply because the offset of certain collateral benefits against underinsured benefits was a matter of first impression in this state.
The judgment was entered on December 12, 1991. State Auto voluntarily paid the judgment amounts against it totalling $317,183.34 on January 2, 1991, and the trial court entered an Order of Disbursement, which included an order that the judgment against State Auto was satisfied and discharged in full. The Order of Disbursement was signed and entered, the appellants claim, without notice to them. Subsequently, the appellants and their attorneys individually endorsed and cashed the checks made out to them on various dates within the month of January 1992.
On January 10, 1992, the appellants filed a joint notice of appeal and designation of record and asserted in their Statement of Points the following:
The Circuit Judge erred as a matter of law by finding that State Auto can offset their $300,000 underinsurance policy limits by the amount of $50,000 automobile liability coverage of Terry Arthur Van-Beber.
The Circuit Judge erred as a matter of law by finding that State Auto is not liable for a 12% penalty on the principal sum of $300,000.
The Circuit Judge erred as a matter of law by making an inadequate award of attorneys’ fees to Appellants.
The Circuit Judge erred as a matter of law by failing to assess prejudgment interest on the principal sum of $300,000 instead of $250,000.
State Auto filed a notice of cross-appeal on January 21, 1992, asserting in its Statement of Points that the trial court erred in not offsetting workers’ compensation payments and, further, that the appellants had waived the right to appeal because they accepted payments on the judgment from State Auto.
On April 15, 1992, the appellants filed their motion to dismiss the cross appeal of State Auto due to voluntary payment of the judgment amounts. According to an affidavit by appellants’ counsel attached to the motion, payment of $317,183.34 by State Auto representing payment of $250,000 in underinsurance benefits, attorneys’ fees and prejudgment interest was made without prior notice to appellants and without a request from them. In the same affidavit, the appellants’ counsel attest that the Order of Disbursement, satisfying the judgment in full, was entered without notice to them or their agreement. The affidavit also contains an averment that State Auto’s counsel advised the affiants that the reason for the Order of Disbursement was to stop the accumulation of the ten percent postjudgment interest.
On April 27, 1992, State Auto moved to dismiss the appellants’ appeal due to their receipt of the $317,183.34 paid into court in satisfaction of the judgment.
I. STATE AUTO’S MOTION TO DISMISS THE APPELLANTS’ APPEAL
State Auto’s motion to dismiss the appellants’ appeal is premised on the theory that a party cannot accept benefits from a judgment and at the same time contest that judgment. The appellants retort that their acceptance of the judgment payment was not inconsistent with the points they now specifically raise on appeal, to wit, the $50,000 offset for Van-Beber’s liability coverage was error, a 12 percent penalty should have been assessed, and the attorneys’ fees and prejudgment interest awarded were inadequate and constituted an abuse of discretion.
The governing law on this issue was handed down early on, and both sides cite it in part:
Again, a party may prosecute his appeal from a judgment, partly in his favor and partly against him, even after accepting the benefit awarded him by the judgment, provided the record discloses that what he recovers is his in any event — that is, whether the judgment be reversed or affirmed. But he waives his right to an appeal by accepting a benefit which is inconsistent with the claim of right he seeks to establish by the appeal. “A party cannot ratify and yet repudiate the same transaction in one breath. He must make his election at the outset to repudiate it in toto or take it cum onere, and, when once made and acted upon, he is estopped from assuming an attitude inconsistent with his first position and detrimental to the rights of others.”
Bolen v. Cumby, 53 Ark. 514, 515 (1890). That basic proposition has been quoted with approbation by this court in later cases. See, e.g., Arkansas State Hy. Comm’n v. Marlar, 236 Ark. 385, 366 S.W.2d 191 (1963); Anderson v. Anderson, 223 Ark. 571, 267 S.W.2d 316 (1954); Jones v. Rogers, 222 Ark. 523, 261 S.W.2d 649 (1953); McCown v. Nicks, 171 Ark. 260, 248 S.W.2d 739 (1926).
This issue, therefore, turns on whether the appellants’ appeal is inconsistent with their acceptance of the judgment amounts. We think not. The judgment awards that were accepted were the appellants in any event. In contrast, their claims on appeal expressly go to additional awards related to the liability policy offset, penalties, attorneys’ fees, and interest as set forth in their Statement of Points. We are mindful that the Order of Disbursement states that the judgment is satisfied in full and that State Auto is discharged from liability due to its payment. The appellants, however, were not notified of the Order and aver that they did not agree that the Order satisfied the liability of State Auto in full. To be sure, State Auto paid the judgment amounts ordered by the trial court. But the order does not purport to foreclose the appellants’ right to appeal regarding any additional liability of State Auto.
On this point, it is instructive that the trial court itself contemplated an appeal when it stated with reference to its decision to deny a 12 percent penalty at the November 13, 1991 hearing: “Well, I realize this will be appealed and I assume you’ll find out when it is, how far I’m out of line and then we’ll know.” That statement suggests that the trial court anticipated that an appeal was in the offing.
Under the circumstances, we do not believe that the appellants’ acceptance of State Auto’s judgment payments or the language of the Order of Disbursement prevent an appeal on the separate points raised in this appeal. We deny State Auto’s motion to dismiss.
II. APPELLANTS’ MOTION TO DISMISS CROSS APPEAL OF STATE AUTO
In the wake of the appellants’ notice of appeal filed January 10,1992, State Auto filed its notice of cross appeal on January 21, 1992, and stated as its principal point that the trial court erred in not offsetting workers’ compensation payments against underinsurance benefits. Prefatory to its notice of appeal, State Auto had voluntarily paid into court the judgment amounts awarded against it totalling $317,183.34. It is that voluntary payment of the judgment that the appellants contend negated State Auto’s ability to cross-appeal. We agree.
A 1982 case handed down by the Court of Appeals is persuasive on this issue. See Lytle v. Citizens Bank of Batesville, 4 Ark. App. 294, 630 S.W.2d 546 (1982). In that case, the appellant satisfied a deficiency judgment against him which was owed the bank which arose out of a tractor sale. After paying the judgment, the appellant appealed. The bank contended that the appeal was moot due to the voluntary satisfaction of judgment and the fact that the appellant had not posted a supersedeas bond. The Court of Appeals hinged its decision on the failure to post bond:
We adopt the majority rule as the better reasoned rule. Thus, if appellant’s payment was voluntary, then the case is moot, but if the payment was involuntary, this appeal is not precluded. In applying this rule to the facts at bar, we must determine whether the payment made by appellant was voluntary or involuntary. In doing so, we believe that one of the most important factors to be considered is whether appellant was able to post a supersedeas bond at the time he satisfied the judgment. The record supports the conclusion that he could have done so.
4 Ark. App. at 297, 630 S.W.2d at 547.
Similarly, in the case before us State Auto could have posted a supersedeas bond and elected to appeal on the failure of the trial court to offset workers’ compensation benefits. It elected not to do so, however, but instead paid the full judgment amounts and on that same date, unbeknownst to the appellants, obtained an immediate Order of Disbursement discharging it from liability on the judgment.
We view voluntary payment of a judgment amount assessed against a party as entirely inconsistent with a subsequent appeal directly related to that payment. Should State Auto prevail on its cross appeal, it would be entitled to an offset against the amount already paid for workers’ compensation benefits. That should not be. State Auto willingly paid the total judgment amount, thereby rendering any later contest involving that amount moot.
The appellants’ motion to dismiss State Auto’s cross appeal is granted.
III. OFFSET OF TORTFEASOR’S LIABILITY COVERAGE
The appellants first argue on appeal that the trial court was in error in offsetting Van-Beber’s $50,000 liability proceeds against the underinsured benefit of $300,000. We agree.
This question is resolved by our recent decision in American Casualty Co. v. Mason, 312 Ark. 166, 847 S.W.2d 392 (1993). There, we considered whether the General Assembly intended under Act 335 of 1987, codified as Ark. Code Ann. § 23-89-209 (Supp. 1989), for an insured to receive the limits of underinsured motorist coverage over and above any recovery from the tortfeasor’s carrier if that recovery was not adequate to fully compensate the insured. We concluded that it did.
We noted in Mason that the language of Act 335 was somewhat unclear, but that “the changes made to section 23-89-209(a) by Act 209 of 1991, the title of Act 209, and the emergency clause of Act 209, clearly indicate the legislature intended underinsured motorist benefits under Act 335 of 1987 to be provided without regard to the amount of insurance carried by any liable party.” 312 Ark. at 170, 847 S.W.2d at 394.
Though the accident in the present case occurred prior to the enactment of Act 209 of 1991, as was the case in Mason, the emergency clause in Act 209 amplifies legislative intent relative to passage of the 1987 act:
It is hereby found and determined by the General Assembly that the present underinsured motorist insurance coverage law is being misinterpreted; that under the present misinterpretation persons covered by underinsured motorist coverage may not receive the benefits intended by the law; and that this act clarifies the law and should therefore go into effect immediately in order to resolve the misinterpretation as soon as possible.
The appellants were not paid in full by the tortfeasor’s coverage and the underinsured benefits. The offset of $50,000 against the underinsured benefits was, therefore, error, and the decision of the trial court is reversed on this point. We remand so that judgment against State Auto in the full amount of $300,000 may be entered.
IV. 12 PERCENT PENALTY
The appellants contend that they made demand on State Auto to pay full benefits on July 31, 1989, and that they were entitled to judgment in the amount of $300,000. Because of this, the 12 percent penalty as authorized by Ark. Code Ann. § 23-79-208 (Repl. 1992) should have been assessed. The trial court declined to award the appellants the statutory penalty because it believed the case to be one of first impression in this state and State Auto was, therefore, justified in following the language of its insurance policy which contemplated a workers’ compensation offset. The trial court did, however, award reasonable attorneys’ fees under § 23-79-208.
The allowance of the statutory penalty and attorneys’ fees is penal in nature and a procedural matter. USAA Life Ins. Co. v. Boyce, 294 Ark. 575, 745 S.W.2d 136 (1988). As the language of § 23-79-208(a) states, the penalty is to be added to recovery when an insurer, after demand, fails to pay for an insured loss within the time specified in the policy. Simmons First Nat’l Bank v. Liberty Mutual Ins. Co., 282 Ark. 194, 667 S.W.2d 648 (1984). The punitive nature of the statute is directed against the unwarranted delaying tactics of insurers. Id.
Because the statute is highly penal in nature, it is to be strictly construed. Callum v. Farmers Union Mutual Ins. Co., 256 Ark. 376, 508 S.W.2d 316 (1974). Heretofore, it was necessary for the plaintiff to recover the exact amount claimed in order to collect the penalty and attorneys’ fees. Miller’s Mutual Ins. Co. v. Keith Smith Co., 284 Ark. 124, 680 S.W.2d 102 (1984). With the enactment of Act 349 of 1991, which added a subsection (d) to § 23-79-208, recoveries within twenty percent of the claimed amount entitled the claimant to the 12 percent penalty and attorneys’ fees.
Two offsets against the underinsured benefits were at issue here: $50,000 received from Van-Beber’s liability policy, and $181,535 in paid workers’ compensation benefits. The offset of $50,000 was contrary to the purpose behind the underinsured motorist law, as already discussed.
Secondly, while there may be no Arkansas authority precisely on point with regard to underinsured policies and workers’ compensation benefits, we have held that the amount of recovery under the uninsured motorist provisions of a liability policy could not be reduced by the amount the injured party received under workers’ compensation coverage where the setoff provision reduced the limit of liability under the uninsured motorist coverage. Travelers Ins. Co. v. National Farmers Union Property & Casualty Co., 252 Ark. 624, 480 S.W.2d 585 (1972). Moreover, in O’Bar v. MFA Mutual Ins. Co., 275 Ark. 247, 628 S. W. 2d 5 61 (1982), we held that accidental death benefits should not be reduced because an insured’s beneficiaries also received workers’ compensation payment for the insured’s death and that a clause in a policy denying benefits on such a basis is a violation of public policy.
Underinsured motorist coverage was enacted in this state in 1987 to supplement benefits recovered from a tortfeasor’s liability carrier. Ark. Code Ann. § 23-89-209 (1987). We have stated its purpose to be “to provide compensation to the extent of the injury, subject to the policy limit.” Clampit v. State, 309 Ark. 107, 110, 828 S.W.2d 593, 595 (1992).
Even though a precise case applicable to underinsured policies had not been decided at the time State Auto refused to pay underinsured benefits, we believe that the public policy of the state could be sufficiently extrapolated from analogous cases and from the underinsured motorist statute itself. Even with the knowledge of the State’s clear public policy, State Auto refused to pay though a demand for payment was made on July 31,1989. In the light of these facts, State Auto’s good-faith argument must fail.
Because we hold today that payment of the policy limits of $300,000 was appropriate, State Auto has no argument that the penalty is inapplicable due to an award of less than the amount claimed. We further observe that at the time of trial in November 1991, Act 349 of 1991 was in effect which authorized the penalty and attorneys’ fees when the amount recovered was twenty percent less than the amount claimed. The amount awarded by the trial court — $250,000 — was within twenty percent of the amount claimed by the appellants — $300,000.
We hold that the penalty statute was appropriately invoked, and we remand for an order assessing the 12 percent penalty from date of demand under § 23-79-208.
V. REASONABLE ATTORNEYS’ FEES
The appellants next contend that the attorneys’ fees of $30,000 were not reasonable under § 23-79-208 when divided among three attorneys. We disagree.
There is no fixed formula for a trial court to use in determining the reasonableness of attorneys’ fees. Southall v. Farm Bureau Mutual Ins. Co., 283 Ark. 335, 676 S.W.2d 228 (1984). This court has, however, recognized factors such as the experience and ability of the attorney; the time and work required; the amount involved in the case and the results obtained; the novelty and difficulty of the issues involved; the fee customarily charged in the locality for similar legal services; whether the fee is fixed or contingent; the time limitations imposed upon the client or the circumstances; and the likelihood, if apparent to the client, that the acceptance of the particular case will preclude other employment by the lawyer. Northwestern Nat’l Life Ins. Co. v. Heslip, 309 Ark. 319, 832 S.W.2d 463 (1992).
The trial court is to consider the factors listed above in exercising its discretion. Northwestern Nat’l Life Ins. Co. v. Heslip, supra. Because of the trial court’s intimate acquaintance with the record and the quality of the service rendered, we generally recognize the superior perspective of the trial court in assessing the applicable factors. State Farm Fire & Casualty Co. v. Stockton, 295 Ark. 560, 750 S.W.2d 945 (1988). Accordingly, an award of attorneys’ fees will not be set aside absent an abuse of discretion by the trial court. Id.
The appellants are emphatic and forceful in their argument that the present case involved complex issues and multiple parties. The attorneys computed their own expenses at $7,000 for Metcalf, and $1,100 each for Gean and Kinsey. Metcalf estimated that he had spent 565 hours and 20 minutes on the case at $150 per hour. He requested a fee of $84,800. Gean billed a total of 318 hours at $200 per hour, bringing his fee to $63,600.
In making its award, and apportioning it at $20,000 for Metcalf, $5,000 for Gean, and $5,000 for Kinsey, the trial court noted that attorney Metcalf had “taken the lead” throughout the case. In addition to these amounts, the court awarded costs totalling $9,200 from the $50,000 in liability proceeds and then awarded one-third of the balance as attorneys’ fees as required by Ark. Code Ann. § 11-9-410 (1987): Metcalf— $6,800; Kinsey — $3,400; Gean — $3,400.
In sum, the trial court obviously took into account the respective efforts of the three attorneys for the appellants and the other attorneys’ fees paid. No abuse of discretion is readily apparent. We affirm the trial court on this point.
VI. PREJUDGMENT INTEREST
Because we have decided that the appellants are entitled to $300,000 instead of the $250,000 they were awarded, prejudgment interest must be assessed on the larger sum, dating from July 31, 1989, the date on which demand for payment was made by the appellants to State Auto. The fact that the statutory penalty and attorneys’ fees are also assessed against State Auto does not impede an award of prejudgment interest as well. See USAA Life Ins. Co. v. Boyce, supra; Maryland Casualty Co. v. Maloney, 119 Ark. 434, 178 S.W. 387 (1915).
The appellants assert that they should receive 11.5 percent interest, which was the interest cost to borrow $250,000 from a lending institution in Ft. Smith on July 31, 1989. In the alternative, they argue that they should receive the actual rate of return that they would have received had their money been invested in a 30-year government security on July 31, 1989 — 7.990 percent.
No rate was agreed upon by the parties in this case. Under Ark. Const. Art. 19, § 13, when no rate of interest has been agreed upon by the parties, prejudgment interest is limited to 6 percent. Killam v. Texas Oil & Gas Corp., 303 Ark. 547, 798 S.W.2d 419 (1990); Wooten v. McClendon, 272 Ark. 61, 612 S.W.2d 105 (1981). In Killam, we specifically affirmed six percent as prejudgment interest under the state constitution rather than the market rate, when the parties had not agreed otherwise. The trial court awarded the proper rate of prejudgment interest.
Affirmed in part. Reversed in part and remanded for an order in accordance with this opinion.
Glaze, J. would grant. | [
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Tom Glaze, Justice.
Appellant, Annette Thomas, was convicted by a jury of being an accomplice to first degree murder of Julia Golden and sentenced to life imprisonment. The state’s case showed that Thomas had a female lover named Jody Matthews who became jealous of Thomas’s relationship with Golden. The theory of the state’s case was that Thomas and Matthews went to Golden’s apartment in the early hours of September 24,1989, because Thomas wanted Golden to explain that she and Golden were not having an affair. Based upon an oral statement Thomas purportedly gave Officer Tim Osborne after Golden’s murder, the state asserted at trial that Matthews disbelieved Golden’s explanation, and in a jealous rage, Matthews pulled a knife and stabbed and slashed Golden to death. Thomas’s statement further reflected that, during this attack, Thomas tried to pull Matthews off of Golden. However, the state offered autopsy evidence showing Golden’s wounds included ones caused by an object like an ice pick. An ice pick belonging to Thomas was ultimately recovered from her car. Based on this evidence along with a luminol test which indicated the ice pick had blood on it, the state theorized Thomas actually assisted Matthews in her attack on Golden.
At trial, Thomas raised a number of objections and now argues four of them on appeal. She argues the trial court erred in (1) admitting the state’s luminol tests, (2) refusing her the right to introduce evidence on cross-examination to impeach an officer’s credibility, (3) refusing to grant Thomas’s directed verdict motions and (4) instructing the jury on accomplice liability. We find merit in Thomas’s luminol test argument, but we first address her directed verdict argument because it involves a challenge to the sufficiency of evidence which must be considered prior to a review of trial errors. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992).
The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, whether direct or circumstantial. Moore v. State, 297 Ark. 296, 761 S.W.2d 894 (1988). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Lukach, 310 Ark. 119, 835 S.W.2d 852. In determining the sufficiency of the evidence, we need only ascertain that evidence most favorable to appellee, and it is permissible to consider only that testimony which supports the verdict of guilty.
Here, as previously mentioned, Thomas was charged and tried as an accomplice to first degree murder. In this respect, she allegedly was the accomplice of Jody Matthews. Under Ark. Code Ann. § 5-2-403 (1987), an accomplice is defined as follows:
(a) A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:
(1) Solicits, advises, encourages, or coerces the other person to commit it; or
(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing it; or
(3) Having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.
So long as a defendant renders the requisite aid or encouragement to the principal with regard to the offense at issue, the defendant is an accomplice even though the defendant may have rendered the encouragement or aid reluctantly. See Sumlin v. State, 266 Ark. 709, 722, 587 S.W.2d 572, 578 (1979). In addition, a defendant can be an accomplice to murder even though the defendant’s participation in the murder is, compared to that of the principal, relatively passive. See Henry v. State, 278 Ark. 478, 486-87, 647 S.W.2d 419, 424, cert. denied, 464 U.S. 835 (1983). Finally, the presence of an accused in the proximity of a crime, opportunity and association with a person involved in the crime in a manner suggestive of joint participation are relevant facts in determining the connection of an accomplice with the crime. Redman v. State, 265 Ark. 774, 580 S.W.2d 945 (1979).
The state presented evidence supporting its theory that Thomas had a lover’s relationship with Matthews and that, as a result of a jealous rage, on the early morning of September 24, 1989, Matthews stabbed Golden to death in Thomas’s presence. The state’s case largely relied on an oral statement that Thomas purportedly gave to Officer Osborne, who investigated Golden’s murder, but Thomas’s sister and brother-in-law, who resided across from Golden’s apartment, confirmed having seen the presence of Thomas’s car outside Golden’s apartment complex during the early morning hours on the day Golden was killed.
The state also offered evidence showing that some of Golden’s wounds were the result of an ice pick, and that, three days after Golden’s murder, the police discovered an ice pick in Thomas’s car. While Thomas explained she had the ice pick in her car for self protection after Golden’s death, Chief Harris testified that, during his investigation, he asked about the ice pick used in Golden’s slaying, and Thomas said that Matthews had possessed the ice pick. When Harris asked where the ice pick was now, Thomas said, “Y’all had it,” thereby implying that the ice pick used in stabbing Golden was the one the police retrieved from Thomas’s car. Officer Osborne related similar testimony. Osborne further stated that Thomas later said that she had lied about the ice pick, and she also recanted her earlier oral statement in its entirety, by claiming she knew nothing about the ice pick and denied being present when Golden was slain. At trial, Thomas maintained her story that she was not present when the murder occurred. This court, of course, has often stated that false and improbable statements explaining suspicious circumstances are admissible as proof of guilt. Bennett v. State, 297 Ark. 115, 754 S.W.2d 799 (1988); Surridge v. State, 279 Ark. 183, 650 S.W.2d 561 (1983).
Also significant to its case, the state introduced the results from luminol testing indicating that blood appeared on the ice pick found in Thomas’s car. When considering all of the foregoing evidence, a jury could conclude that Thomas jointly participated with Matthews in Golden’s murder, at least by furnishing the ice pick used by Matthews in her brutal slaying of Golden even though the ice pick, itself, was shown only to have produced non-lethal wounds to Golden’s body.
We turn now to the point that gives us the most concern, namely, whether the trial court erred in failing to either (1) exclude the luminol test results conducted on the ice pick found in Thomas’s car or (2) grant a continuance so Thomas could sufficiently rebut those results. This issue arose after the trial court ruled at least once prior to trial that the state could not introduce the luminol test results at trial.
At a suppression hearing held on March 13, 1991, the defense asked that the state not be able to mention the ice pick found in Thomas’s car because the state had lost or misplaced the ice pick. The court denied Thomas’s request. Sometime later, apparently shortly before trial in August of 1991, it became known that Officer Gilbert had the ice pick and he had sent it to the crime laboratory where Donald Smith, an expert, conducted a luminol test. Smith found the ice pick bore a speck of matter that tested positive as blood. Smith could not discern whether the blood was animal or human. This information was immediately given the prosecutor who in turn informed Thomas’s counsel of this new evidence. On August 29,1991, counsel for the state and Thomas were selecting the jury, and during a break, the state asked the trial court to rule the luminol test results admissible, but the court refused, stating the defense was not given time to procure an expert to rebut the state’s test. The state then asked to nol pros the case, but it later withdrew its motion. Instead, the state on the day of trial, August 30,1991, chose to make its record on the luminol admissibility issue after the parties completed their jury selection.
The state put on Officers Gilbert and Osborne, Investigator John McCord and Donald Smith who testified that, once the ice pick was located, it was their “impression” that Thomas’s counsel wanted this luminol test conducted. Thomas’s counsel denied that he had joined in such a request and pointed out that the crime lab’s form showed the requesting agency was the prosecuting attorney. The trial court reversed his prior ruling, finding that Thomas’s counsel had joined with the state in requesting the test be conducted. Regardless of the correctness of the trial court’s finding, the record is clear that Thomas’s counsel never indicated he would agree to the admissibility of the results of the luminol test, nor did he agree to forego any challenge to the reliability of such a test. While there is no indication that the state intentionally withheld the ice pick or delayed testing of it, we have held that information requested by the defendant in a discovery motion must be forwarded in sufficient time to permit beneficial use of it. Lewis v. State, 286 Ark. 372, 691 S.W.2d 864 (1985).
Here, Thomas had filed a continuing discovery request that sufficiently covered scientific test results such as the ones obtained by the state in this case. In Lewis, we held that, when the state fails to comply with such a discovery request, the court may order the undisclosed evidence excluded, grant a continuance, or in some instances a recess, or enter such other order as it deems proper under the circumstances. In Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981), this court concluded that, if the court’s discovery rules are to be meaningful, the rules must be complied with where there has been a timely request, there is no finding of compliance by the state and there is prejudice to the defense.
In the present case, Thomas’s counsel made a timely request for all scientific test results and actually received results from a serology test which was taken before the luminol test and which indicated no blood shown on the ice pick. The state’s luminol test results obviously impacted on Thomas’s serology test results that she intended to introduce. Because the trial court on the day of trial reversed its earlier ruling so as to allow the state to admit the luminol test results into evidence, Thomas’s counsel had no time to obtain an expert in an effort to rebut the state’s evidence.
The importance of the trial court’s new ruling is reflected in the trial court’s remarks offering to assist Thomas in obtaining an expert, saying, “We’ll see if we can get some independent test,” “. . . we’re going to try to get you an expert,” . . . we’ll try to get you somebody [counsel].” No expert was forthcoming. And while the state on appeal suggests Thomas’s counsel may have waived his right to such an expert because he failed to show he made any effort to do so, we believe the record better suggests that neither the trial court, prosecutor nor Thomas’s counsel could locate a luminol test expert on such short notice. After the trial court ruled to admit the test results, the trial commenced immediately thereafter. Thomas’s counsel simply had no time to obtain an expert.
Whether Thomas was prejudiced by the trial court’s refusal to grant her request for a continuance after its decision to admit the luminol results is evident from the state’s announced intention to nol pros its case against Thomas when the trial court had earlier ruled the luminol results inadmissible. Aside from the prosecutor’s earlier request to nol pros, one need only review the evidence hereinabove to realize that the ice pick and luminol results are key pieces of evidence on which the state’s case depends to show Thomas was Matthews’ accomplice in Golden’s murder. Thomas’s counsel had no time to make beneficial use of the luminol results given him by the state, nor did he have the opportunity to obtain an expert to review those results. Because the state failed to comply with the trial court’s discovery rules and the trial court erred in failing to take steps to remedy the state’s noncompliance, we must reverse and remand this case for a new trial.
Because we have already discussed the state’s evidence that we believe supported the state’s theory that Thomas was an accomplice in the first degree murder of Golden, we need not discuss further Thomas’s argument that the trial court erred in instructing the jury concerning Thomas’s status as an accomplice. Neither is it necessary to address Thomas’s argument that the trial court erred in refusing Thomas’s use of extrinsic evidence to impeach Officer Osborne’s testimony on cross-examination, since such evidentiary issue is unlikely to arise again at any retrial of this matter.
For the reasons above, we reverse and remand..
Thomas argues that she never intended to attack Officer Osburne’s credibility on cross-examination, but did so only after Osborne volunteered that he had never done anything in the past for people to think he would lie. | [
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Robert H. Dudley, Justice.
Appellant, Linda Rainey, the plaintiff below, is the daughter of Dolan Travis and his first wife, who died in the forty-ninth year of their marriage. In 1986, after his wife’s death, Dolan Travis, who was about seventy years old at the time, and appellee, Retha Travis, who now is seventy years old, decided to get married. The prospective spouses each consulted with their attorneys and entered into an antenuptial agreement that gave appellee the right to live in Dolan Travis’s home after his death. The material provision is as follows:
The following real property, which is the prospective husband’s home, shall remain his separate property, except the wife can remain in the home after his death for the rest of her natural life, unless she vacates the property for any reason. Wife specifically waives and relinquishes any dower or homestead rights she may have, now or in the future, in the following real property: [property description].
Dolan Travis and Retha Travis, the appellee, were married on September 6, 1986. He died on September 29, 1987, a little over a year later. After Dolan Travis’s death, appellee continued to live in the home. Unfortunately, the home is located within sight of appellant’s home, and, over a period of several months, appellant and some other neighbors observed that a truck was parked in front of appellee’s home and remained there overnight. Appellant decided that appellee was permitting a man to stay in the home overnight, and, since it had been her parent’s home, she thought such action was outrageous. She filed suit alleging that the action was in breach of an oral side-agreement to the prenuptial agreement and that it amounted to intentional infliction of emotional distress. Appellee moved for summary judgment, and the trial court granted the motion. Appellant appeals. The ruling of the trial court was eminently correct.
Appellant alleged that appellee’s conduct was in violation of one of four alleged oral side-agreements that were entered into as a part of the antenuptial agreement. She indicated that her father had told her of the existence of these agreements after the antenuptial agreement was written, but before it was executed. One of the alleged oral agreements was that appellee could remain in the home only as long as she lived there alone and only as long as she did not use the home for any immoral purpose. Appellant alleged the breach of this agreement and further alleged that the breach of this agreement constituted the intentional infliction of emotional distress.
Appellant first argues that the prenuptial agreement is ambiguous and that parol evidence is admissible to explain the ambiguity. She makes the argument because it is only when an ambiguity exists in a contract that parol evidence is admissible. See Isbell v. Ed Ball Construction Co., 310 Ark. 81, 833 S.W.2d 370 (1992). The prenuptial agreement is clear on the issue of the appellee’s right to live in the house. There is no ambiguity, and the trial court correctly ruled that extrinsic evidence was not admissible.
Appellant also argues that parol evidence should be admissible to establish the restrictions on appellee’s right to live in the home because the additional agreements are collateral agreements, and extrinsic proof of collateral agreements is not excluded by the parol evidence rule. This court discussed the “collateral agreement rule” in Lane v. Pfeifer, 264 Ark. 162, 568 S.W.2d 212 (1978). There we stated,
It is well recognized that parol evidence cannot be introduced to change or alter a contract in writing. The test of admissibility is whether the evidence offered tends to alter, vary, or contradict the written contract, or only to prove an independent, collateral fact about which the written contract was silent. In the former instance the testimony is inadmissible; in the latter, it is competent and proper. When testimony is offered to prove an independent, collateral fact about which the written contract is silent, the parol evidence rule is not applicable. . . .
Id. at 167, 568 S.W.2d at 215 (citations omitted).
In the present case, the prenuptial agreement provided for appellee’s interest in the home. The agreement gave appellee the right to live in the home after the husband’s death for the rest of her life unless she vacates the property. The agreement covered the subject. The additional requirement, alleged by appellant to have been breached, requires appellant to live in the home alone and to not use the home for any immoral purpose. This relates directly to the unconditional right to live in the home granted in the agreement. The additional requirement is therefore neither independent nor collateral, as is required under Lane. Thus, the trial court correctly ruled that extrinsic evidence was not admissible to establish the existence of additional requirements.
Because the extrinsic evidence proposed by appellant does not concern independent, collateral agreements, it must be offered to alter the antenuptial agreement. As such, the evidence is excluded by the parol evidence rule. Under that rule, all prior and contemporaneous proposals and agreements merge into the written agreement, which cannot be added to or varied by parol evidence. City of Crossett v. Riles, 261 Ark. 522, 549 S.W.2d 800 (1977). This rule applies only to documents that the parties intended as a final and complete expression of their agreement. See Farmers Coop. Ass’n, Inc. v. Garrison, 248 Ark. 948, 454 S.W.2d 644 (1970). In the present case, the antenuptial agreement contains what is termed a “merger clause.” The clause reads, “The provisions contained in this agreement represent the entire understanding between prospective husband and prospective wife pertaining to their respective property and marital property rights.”
Finally, the Court of Appeals has held that the parol evidence rule does not apply to bar a stranger from introducing extrinsic evidence concerning a written agreement. See Silivcraft, Inc. v. Southeast Timber Co., 34 Ark. App. 17, 805 S.W.2d 84 (1991); Sterling v. Landis, 9 Ark. App. 290, 658 S.W.2d 429 (1983). The rule cited by the court in those cases was based on holdings of this court. We have held that the parol evidence rule bars only parties and those claiming an interest under the contract from using extrinsic evidence regarding the contract. See Barfield Mercantile Co. v. Connery, 150 Ark. 428, 234 S. W. 481 (1921); Talbot v. Wilkins, 31 Ark. 411 (1876).
Here, appellant is not in privity of contract with her father, as she did not succeed to the rights of her father under the contract. However, appellant is not a “stranger” to the contract and has sufficient ties to it to be bound by the rule as would the parties. In Barfield Mercantile, we held that the situation of a nonparty to the written instrument fell within the operation of the rule so that the nonparty was entitled to the benefit of the parol evidence rule. In that case the nonparty was a former lessee who had sold his leasehold interest to one who later purchased the fee interest. The trial court had allowed the former owner of the fee estate to testify that there was an oral agreement in the sale of the property that the rents for that year would be reserved to her. On appeal, we held that the trial court erred in allowing the oral testimony. We held that the nonparty was “directly interested” in the deed because it was in the chain of conveyances that merger of the fee and leasehold estates occurred and thus the extinguishment of his obligation under the lease.
In the present case, appellant is entitled to possession of the real estate when appellee no longer lives in the home. She received that right to the real estate as her father’s heir. The agreement giving appellee the right to live in the home substantially and directly affects appellant’s rights in the real estate. She cannot sell the home or live in it herself because of the agreement. Under these facts, appellant has sufficient ties to the agreement to cause her to be “directly interested” in it under Barfield Mercantile, and she is thus bound by the parol evidence rule just as the parties to the agreement would be.
Appellant argues that the trial judge also erred in granting summary judgment on the second count of her complaint, intentional infliction of emotional distress. This court has recently summarized the law in Arkansas on this tort:
We first recognized the tort of outrage — the intentional infliction of emotional distress — in M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980). The conduct complained of must be “so outrageous in character, and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.” While this court has recognized the type of conduct must be decided on a case by case basis, the stringent standard in Counce has prevailed.
Neff v. St. Paul Fire & Marine Ins. Co., 304 Ark. 18, 20, 799 S.W.2d 795, 796 (1990) (citations omitted).
Appellant’s basis for her claim of intentional infliction of emotional distress falls far short of meeting the stringent standard followed by this court. The fact that a seventy-year-old woman is having a man spend the night in the home in which she has a right to live is not conduct so outrageous and extreme as to be utterly intolerable in a civilized society. Even in the context of the present case, that the home was appellant’s parent’s home, appellee’s alleged conduct does not rise to the necessary level of extremeness and outrageousness to state a claim for intentional infliction of emotional distress.
Finally, appellant claims that the trial judge erred in granting summary judgment on this second count because genuine issues of material fact exist concerning whether appellee actually committed the conduct giving rise to the claim. Appellee admits the conduct occurred, while disputing its frequency. Even if there is a dispute over the frequency of the conduct, it is not a material dispute. If all of appellant’s allegations are taken as true, she does not state a claim for intentional infliction of emotional distress. Any unresolved factual issues are therefore irrelevant, and the trial judge did not err in granting the motion for summary judgment on this count.
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Tom Glaze, Justice.
This is an appeal from the trial court’s denial of appellant’s Rule 37 petition for post-conviction relief. The sole issue before us on appeal is whether a factual basis under A.R.Cr.P. Rule 24.6 was established for appellant’s guilty plea. We affirm the trial court’s finding that a factual basis was established for the appellant’s guilty plea at the Rule 37 hearing.
Appellant was charged with aggravated robbery, theft of property, kidnapping and rape. After his arrest, the appellant gave a statement to the police confessing that he entered a convenient mart armed with a gun and robbed the store. After the clerk gave him the money, the appellant also admitted forcing the clerk to leave and accompany him to his house. Appellant’s statement reflects that he refused to talk-to the police about the rape which was alleged to have occurred at his house. However, the clerk’s statements to her examining doctor and to the investigating police officer revealed that the appellant threatened the clerk with a knife and then raped her with his fingers and hand. The doctor’s report further revealed that the victim suffered several lacerations in her vagina, which caused severe bleeding. Pursuant to a plea agreement, the appellant pleaded guilty to all charges and received the following sentences to run concurrently: forty years for aggravated robbery, ten years for theft of property, forty years for kidnapping, and life for rape.
In accordance with A.R.Cr.P. Rule 24.6, a trial judge before entering judgment upon a guilty plea must make inquiry as to whether there is a factual basis for the plea. Here, both parties concede that a factual basis was not established by the trial judge at the plea hearing. However, this court has stated numerous times that if the factual basis for the plea is not sufficiently established at the plea hearing, it may be established at the Rule 37 hearing where the factual basis is determined to have existed at the time of the guilty plea. See, e.g., Muck v. State, 292 Ark. 310, 730 S.W.2d 214 (1987). We further note that the requirement of a factual basis for a plea does not require that the appellant be proven guilty but merely that there was sufficient evidence from which the trial court could conclude that the appellant would be found guilty if he elected to proceed to trial. See Snelgrove v. State, 292 Ark. 116, 728 S.W.2d 497 (1987).
Appellant argues that the trial court failed to establish the necessary factual basis for his guilty plea at the Rule 37 hearing. At that hearing, Ricky Riggs, a police officer, testified about his interview with the victim and her statements about the rape. The trial court considered the examining physician’s report, which was attached to appellant’s Rule 37 petition and submitted into evidence. That report contained not only a medical description of the extent of the victim’s injuries, but also the victim’s statements about the rape.
The appellant objected below, and argues on appeal, that the officer’s testimony and doctor’s statement were hearsay and therefore inadmissible. We recently have rejected such an argument. See Flaherty v. State, 297 Ark. 198, 761 S.W.2d 167 (1988); Muck, 292 Ark. 310, 730 S.W.2d 214. In sum, this court has held that testimony or statements such as those present here are admissible since they are not introduced to prove the truth of the matter stated, but only to show that if the defendant (appellant) stood trial there was evidence from which the trial court could conclude that he was guilty.
For the reasons stated above, we affirm.
Appellant confessed to the other charges against him, so on appeal he challenges only the factual basis for the rape charge. | [
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David Newbern, Justice.
The issue in this appeal is whether a Chancellor who has determined the Chancery Court lacks jurisdiction of a suit begun there may enjoin the parties to retain the status quo until the merits of the case are decided in a Circuit Court. We hold a Chancellor has the authority to do so if it appears that the remedy at law might otherwise be inadequate.
American Investors Life Insurance Company (American Investors), the appellant, provided health insurance to employees of appellee TCB Transportation, Inc. (TCB). Premiums were paid by individual employees through withholdings from wages. A dispute arose over late payment of the past-due medical bills of ■ Steve Turner who was an insured under the policy as the spouse of one of the TCB owners. Turner had contracted Hodgkins disease. A notice of cancellation of the policy was sent by Fewell & Associates, administrator for American Investors, to the Turners.
TCB and its eight employees sought an injunction in Jackson County Chancery Court requiring that insurance coverage be continued until a determination could be made whether cancellation was proper. The petition alleged irreparable harm would result if coverage was terminated because the cost of replacing Steve Turner’s health insurance, assuming replacement coverage could be obtained, would increase by over 200%.
A consent order was entered in which Fewell & Associates agreed to withdraw its notice of cancellation and continue coverage until the action could be determined on the merits. TCB’s petition for an injunction was held in abeyance.
American Investors moved for summary judgment, arguing TCB and its employees were no longer qualified to be insured under the terms of the group policy and, therefore, cancellation was proper. The motion also requested that the petition for injunctive relief be dismissed or transferred to Circuit Court as there was an adequate remedy at law for breach of contract.
In response, TCB argued there were material questions of fact presented as to whether cancellation was proper. TCB recognized, however, that the case involved breach of contract issues and that the Chancellor should not decide them on the merits. TCB thus had no objection to transferring the claims to Circuit Court provided the prior consent order remained in effect pending the outcome of the litigation.
The Chancellor denied the summary judgment motion and transferred the case to the Circuit Court, stating he lacked subject matter jurisdiction. The consent order was left in effect, and American Investors was ordered to maintain coverage for TCB and its employees pending a final determination in the Circuit Court.
A common function of a temporary restraining order or a preliminary injunction is to maintain the status quo until the merits of a controversy are decided. See Citizens’ Pipeline v. Twin City Pipeline, 183 Ark. 1006, 39 S.W.2d 1017 (1931). In some instances we have observed that a Chancery Court entered a temporary order to preserve the status quo although the merits of an underlying controversy were to be decided in a Circuit Court. Mills v. Patton, 233 Ark. 755, 346 S.W.2d 689 (1961); Coffelt v. Nicholson, 224 Ark. 176, 272 S.W.2d 309 (1954); Special School Dist. No. 58 v. Deason, 181 Ark. 208, 255 S.W.2d 23 (1930).
A party must show lack of an adequate remedy at law to obtain relief in equity, Compute-A-Call v. Tolleson, 285 Ark. 355, 687 S.W.2d 129 (1985); however, in Honor v. Yamuchi, 307 Ark. 324, 820 S.W.2d 267 (1991), we stated, “Regardless of whether the appellant is entitled to bring an action of law, the mere existence of that right does not deprive the equity court of jurisdiction unless the legal remedy is clear, adequate and complete [emphasis in original].”
We hear chancery cases de novo, and we may affirm if we find the result reached by the chancellor was correct for any reason. May v. Bob Hankins Distributing Co., 301 Ark. 494, 785 S.W.2d 23 (1990). We lack assurance that the remedy for breach of contract is complete in this situation. If Turner or some other insured were denied health care as a result of inability to pay it might not matter at all whether there was a remedy in contract, for it could prove to be wholly inadequate.
It was not improper for the Chancellor to transfer the case to the Circuit Court. Nor do we find error in his order requiring temporary maintenance of the insurance coverage in view of our conclusion that the remedy at law would otherwise have been incomplete.
Affirmed.
Glaze, Corbin, and Brown, JJ., dissent. | [
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John I. Purtle, Justice.
This is an appeal from the decree of the chancellor entered on October 1,1987, holding that the Willa B. Hughes Trust was never established, implemented, or funded; that the two warranty deeds attached to the declaration of trust were a cloud on James Hughes’ title and should be set aside; that the warranty deeds dated June 19, 1953, transferred the real property here in question to Mr. and Mrs. Hughes as tenants by the entirety; and that upon the death of Willa B. Hughes title to these lands passed by operation of law to James O. Hughes. For reversal the appellant argues: (1) the court erred in holding that the Willa B. Hughes Trust was never established, implemented or funded; (2) the court erred in ruling upon the validity of the trust; and (3) the chancellor erred in holding that the deeds from Willa B. Hughes to herself and her husband were valid and that they created an estate by the entirety. For reasons stated below we reject all three arguments and affirm the decree of the chancellor.
Willa B. Hughes and James O. Hughes were married in 1942. It was the second marriage for Mrs. Hughes; she had one son, Thomas M. Kinghorn, born of her first marriage. Mr. Hughes did not have children at the time and no children were born of this marriage.
Between 1942 and 1953 the parties acquired certain real estate, apparently in the name of Willa B. Hughes. However, she executed deeds to a third party in 1953, and deeds were in turn executed to her and James O. Hughes as tenants by the entirety.
In 1971 Willa B. Hughes executed deeds to the property to a trust which she and her husband intended to establish at that time. A trust instrument was prepared, along with two deeds purportedly conveying the property to the Willa B. Hughes Trust. Both parties signed the trust agreement. However, Mr. Hughes never signed the deeds. The trust instrument purported to establish the Willa B. Hughes Trust and the James O. Hughes Trust, with the provision that upon the death of both of the Hugheses, the named trustees, the property would pass to the Thomas M. Kinghorn Trust. No tax returns were ever filed for the trust, and neither the deed nor the trust instrument was ever filed of record. The only tangible evidence of establishment of the trust was the opening of some bank accounts. These accounts were in the name of the Willa B. Hughes Trust. Both parties were given the right to sign checks.
Shortly before Willa B. Hughes died in 1986, her son, the appellant, came to Arkansas from California and became interested in the trust. Mr. Hughes and Kinghorn never seemed to get along, and shortly after the death of Willa B. Hughes the appellant filed suit for an accounting and confirmation of trustees. On September 9, 1986, Mr. Hughes recorded the two 1953 deeds. On September 22,1986, the appellant recorded the 1971 deeds.
The burden of proof to establish the existence of a trust is upon the party alleging the existence of the trust. Kansas City Life Insurance Company v. Taylor, 184 Ark. 772, 43 S.W.2d 372 (1931). Therefore, before the court could take any action affecting the trust property, it must first be established that the trust existed. Unless the trust was legally established, there could be no duties and responsibilities of trustees.
We must examine the facts to determine whether the trust existed. The deeds prepared and executed in 1953 conveyed the property to J.O. Hughes and Willa B. Hughes as “joint tenants with express rights of survivorship.” (These lands are the same as those later purportedly transferred to the trust in 1971.) A conveyance to parties who are married creates a tenancy by the entirety. Robinson v. Eagle, 29 Ark. 202 (1874). Each of the tenants by the entirety is secure against the impairment of their property rights through the sole act of the other. Franks v. Wood, 217 Ark. 10, 228 S.W.2d 480 (1950). The evidence presented to the trial court was clearly sufficient to support the decree that, subsequent to the execution of the 1953 deeds, the property was owned by Willa B. Hughes and James O. Hughes as an estate by the entirety.
In making the determination that the Willa B. Hughes Trust was never established, the trial court took into consideration such other matters as the testimony that the trust was established for tax purposes only; that the lands were never actually conveyed to the trust; that no taxes were ever paid or tax returns filed on the trust property; that the property and bank accounts remained exactly as they were before the trust papers were executed; and that neither the trust instrument nor the deeds were ever recorded. Upon review of the record, it is fair to say that the facts support the chancellor’s decision that the parties never took any action with respect to the trust after it was executed in the lawyer’s office. Certainly it cannot be said that James O. Hughes complied with the terms of the trust agreement because he never executed the deeds to the trust. His reason for not doing so is not explained, and we cannot speculate. All of the papers, documents, and records remained in the joint possession of the parties after the 1971 execution of the trust papers. Moreover, the trial court appointed a trust officer of a bank to make an interim report on the trust. The temporary trustee reported that he was unable to make a report because he could find no evidence that the trust had actually been established.
We find that the decree of the chancellor was not clearly against the preponderance of the evidence. Although we review decisions of the chancery court de novo, we do not set aside findings of fact unless they are clearly erroneous. Since we agree with the chancellor’s decree that the trust was never established, it is not necessary to reach the other arguments of the appellant.
The probate court retained jurisdiction of the case since there are certain properties of the estate of Willa B. Hughes that have not yet been distributed. The funeral and tax bills are still to be paid from present deposits. The decree of the chancellor holding that the trust was never established and cancelling the deeds to the trust is affirmed.
Affirmed and remanded. | [
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David Newbern, Justice.
This appeal arises from a temporary guardianship proceeding. The appellee, Patricia Savage, and her husband are the grandparents of one-year-old Ryan Bynum, the appellant. The Savages petitioned ex parte for an emergency order of temporary guardianship of the child. The order was granted. Then Georgina Bynum, the child’s mother, appeared and asked the Probate Judge to set aside the order. Her petition was granted. She nevertheless appeals, challenging the constitutionality of the temporary guardianship law. Ark. Code Ann. § 28-65-218 (Supp. 1991). We must dismiss the appeal.
In her petition to set the guardianship aside, Georgina Bynum argued her right to due process of law had been violated by granting the temporary guardianship without notice to her. She denied the allegations of parental unfitness and requested a hearing.
After the hearing, during which the constitutional objections to the temporary guardianship statute were raised, the Probate Court ruled as follows:
Okay, here’s what I’m gonna do. I’m gonna set aside the tempor—the ex parte order and circumvent all the constitutional arguments. I’m going to order the child turned over, within forty-eight hours, to the mother and give you [the Savages] that much time to take the facts to the Department of Human Services or the prosecuting attorney’s office to determine whether or not any action should be taken.
No objection was voiced to the decision or to the “circumvention” of the constitutional issues.
It is undisputed that the Probate Court set aside its temporary order of guardianship just as Georgina Bynum requested, and her complaints about the Probate Court’s earlier action are moot. When, however, a case involves the public interest, or tends to become moot before litigation can run its course, or a decision despite mootness might avert future litigation, we have, with some regularity, refused to permit mootness to become the determinant. See, e.g., Campbell v. State, 300 Ark. 570, 781 S.W.2d 14 (1989).
This is the kind of case we might decide if mootness were our only impediment. Temporary guardianships last only ninety days, Ark. Code Ann. § 28-65-218(a)(Supp. 1991), and clearly it would be difficult for us to reach a decision on appeal within that time. But for other circumstances having to do with the bringing of this appeal, we might be inclined to consider the issues presented as “capable of repetition, yet evading review.” DeFunis v. Odegaard, 416 U.S. 312 (1974). Not only is that circumstance present, but the constitutional issues which might have been addressed are substantial, and the statutory scheme is suspect. A parent has a fundamental liberty interest in the care, custody, and management of his or her child. See Santosky v. Kramer, 455 U.S. 745 (1982). Georgina Bynum questions the failure of the statute to provide for notice to parents of the imposition of a temporary guardianship of a child under 14 and its failure to provide for' a hearing within three days of the entry of the order of temporary guardianship. Arkansas Code Ann. § 28-65-218(d) (Supp. 1991).
This is not, however, just a moot case in which substantial issues could be considered. Rather, the party asking us to consider an otherwise moot issue obtained exactly the relief she requested. A party who prevails has no ground for appeal. Kelley v. Medlin, 309 Ark. 146, 827 S.W.2d 655 (1992). Nor has there even been a trial court ruling of any sort on the issues Georgina Bynum would have us decide. With the exception of the contempt power and certain listed writs, this Court has only appellate jurisdiction. Ark. Const. art. 7, § 4; Levy v. Albright, 204 Ark. 657, 163 S.W.2d 529 (1942). We decline to be placed in the position of making original, as opposed to appellate, decisions. Trice v. City of Pine Bluff, 282 Ark. 251, 667 S.W.2d 952 (1984); Weston v. State, 265 Ark. 58, 576 S.W.2d 705 (1979); Ward School Bus Mfg. v. Fowler, 261 Ark. 100, 547 S.W.2d 394 (1977).
Appeal dismissed.
Hays, J., dissents. | [
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McHaney, J.
Appellants have correctly stated the case as follows: “On April 1,1922, M. W. Hazel, Wilmer Smith, C. A. Dawson, L. Y. Ritter, N. J. Hazel, O. E. Causey and T. J. Sharum were directors of the First National Bank of Marked Tree, Poinsett County, Arkansas, T. J. Sharum being president and N. J. Hazel, vice president, and C. E. Causey, cashier. A short time prior to said date of April 1, 1922, the bank examiner found that the capital stock of said bank had been impaired as the result of which the persons named executed and delivered to said bank their promissory note in the sum of $30,-304.91, dated April 1, 1922, and payable 60 days thereafter. On October 19, 1922, M. W. Hazel paid on said note the sum of $12,500 and one Gr. H. Williams paid enough in addition thereto to discharge about one-half of said note, leaving about the sum of $15,000 due and payable thereon. In January, 1923, T. J. Sharum, president of the bank and one of the signers of the note, died and J. J. Sharum and Mrs. Myrtle Meriwether, appel lees herein, succeeded to the estate and obligations of the said T. J. Sharum. Subsequent to the death of the said T. J. Sharum, the bank had añade several requests upon the appellees to pay the remainder due on said note, and after various negotiations and conferences between appellees and officers of the (bank, appellees, on April 19, 1923, paid the remainder of about $15,000 due on said note and took an assignment thereof signed by N. J. Hazel, cashier. On May 30, 1927, appellees filed this suit against the persons who had signed said note, praying for the recovery of the amount appellees had paid on said note.”
Appellants Bitter and Dawson answered, denying the allegations of the complaint, and, in addition, alleged that the appellees paid the balance due on the note on April 19, 1923', and that they did not bring- their action within three years from that date, and, consequently, the action was barred by the statute of limitations. There was a default decree rendered against Hazel, Smith and Dawson. M. W. Hazel, having been discharged in bankruptcy, the case as to him was dismissed. The court entered a decree against appellants Bitter and Dawson in the sum of $3,302.34 each, with seven per cent, interest per annum.
The only question presented by this appeal is whether the appellees’ cause of action was barred by limitation at the time suit was instituted. Appellants contend that the action is a simple suit for contribution based on an implied obligation, and that the three-year statute (§ 6950, C. & M. Digest) applies. On the other hand, it is the contention of appellees that they had, first, a right of contribution as against the other makers of the note who did not contribute to its payment; and, second, had also the right to be subrogated to all the rights oif the First National Bank of Marked Tree in and to the note which they paid; and that their action is based on the note itself, and is governed by the five-year statute of limitation (§ 6955, C. & M. Digest).
All the signers of the note in question were joint obligors. They were jointly and severally liable to the bank for the whole amount of the note. Each was liable for the whole amount. T. J. Sharum, appellees’ ancestor, during his lifetime, and his estate, after his death, was bound for the full amount. After his death, on April 19, 1923, appellees paid the balance due on the note, $15,000, took an assignment thereof, and took down the valuable collateral deposited by T. J. Sharum to secure the note. This was a payment of an obligation for which the estate of T. J. Sharum was primarily liable. He was liable as a principal and not as a surety, except in the sense that all the signers were liable for their pro rata part of the debt, and that each was surety for the other on their pro rata share of the indebtedness. Having paid the debt to to bank for which their testator, or intestate, was primarily liable, we are of the opinion that the assignment of the note to appellees was ineffectual in preserving to them a right of action based on the note, which the bank had, while the note was in its hands. In other words, that appellees were not subrogated to the rights of the bank to bring a suit on the note against the other joint makers. They had paid an indebtedness that was their own, as it is conceded that they had succeeded to all the estate and obligations of said T. J. Sharum. Having paid an indebtedness for which they were primarily liable, it is difficult to perceive on what principle they could be said to be subrogated to the rights of the bank to maintain an action on the note, and we hold that they were not, except to enforce contribution. Here the appellees, having paid the whole amount of the debt for which all were jointly liable, were entitled to maintain an action for contribution against the other joint makers of the note, not on the note, but on the contract which the law implies, an obligation worked out by courts of equity in order to do exact justice between the parties. This court in Cooper v. Hush, 138 Ark. 602, 212 S. W. 94, said: “The right of action for contribution accrues when one surety pays more than his share of the common liability. In most of the cases it is said that the contract for contribution between sureties is one which the law implies for their mutual protection and indemnity. Nearly all the cases agree, however, that no cause of action arises until payment by one of their common debt, and the statute of limitation begins to' run against an action to enforce contribution at the time of such payment. Woods v. Leland, 1 Metc. (Mass.) 387, and Mentser v. Burlingame (71 Kan. 581) 81 Pac. 196, and case note. Numerous' decisions which we have read are cited in the note and support the principal case.” The three-year statute of limitations was held applicable. The same rule was applied and followed in Pennington v. Karcher, 171 Ark. 828, 286 S. W. 969. See also Lingo v. Swicord, 150 Ark. 384, 234 S. W. 264. We think the principles announced in these cases, especially in Cooper v. Rush and Pennington v. Karcher, are controlling here. It is true that there was no' assignment of the instruments in these cases to the parties plaintiff, but we are of the opinion that this does not alter the situation. When appellees paid the debt on April 19, 1923, the right of action for contribution accrued, and, being an implied obligation, one not in writing, the three-year statute controls, and was barred April 19', 1926. Not having been brought in that time, but more than a year later, appellants’ plea of the statute as a bar to the action should have been sustained. Numerous cases are cited by learned, counsel for appellees to the general effect that when a note shows that the person paying it is a surety only, an assignment of the note to him does not operate as a discharge thereof so as to prevent Trim from realizing on collaterals deposited by the principal debtor with the creditor, or to pursue any remedy of the creditor against the principal. We think these cases have no application to the facts in this case, for Sharum was not a surety merely, but a joint maker, obligor, or principal debtor.
The decree of the chancery court is therefore reversed, and the cause dismissed. | [
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David Newbern, Justice.
The appellant, Aubrey Dean Elwood, appeals from denial of post-conviction relief. He contends a condition of his plea of guilty to theft was that his sentence would be served concurrently with any sentence he received on charges pending in Oklahoma. The trial court agreed with that condition but notified Elwood that it had no control over what the Oklahoma court might do. Apparently the Oklahoma court chose not to proceed against Elwood, and he is serving his Arkansas prison sentence in Arkansas rather than in Oklahoma as he had hoped to do. He filed a pro se petition to withdraw his plea of guilty. The court found it lacked jurisdiction to set aside a plea already executed, but the petition was treated as one seeking relief under Ark. R. Crim. P. 37. We affirm the denial of the petition.
At the hearing where Elwood pleaded guilty to theft charges with respect to which the available sentence was enhanced by the habitual criminal law, the following occurred:
MR. STEEL [the prosecutor]: Your honor, it will be the recommendation of the State that the defendant be sentenced to twenty (20) years in the Arkansas Department of Correction, with five (5) of those years suspended, and that the fifteen (15) years run concurrently with other convictions or charges pending in Oklahoma, wherein they expect to have a comparable amount of time, or in excess of that, is that right?
THE DEFENDANT: Yes sir.
THE COURT: What do you have pending over there?
THE DEFENDANT: Felonious possession of a firearm, possession of a firearm after one conviction, five-year parole violation, unauthorized use of a motor vehicle.
THE COURT: We can run them concurrently, but when you plead over there, if they say theirs is consecutive, it could cause some problems, do you understand that?
THE DEFENDANT: Yes sir. I’m pretty sure they’ll run theirs all ... .
THE COURT: ... at the same time?
THE DEFENDANT: Yes, sir.
THE COURT: Well, I’m just putting you on advi[c]e that if you go to prison and they run theirs consecutively, there is nothing I can do about it. They probably won’t, but they could. What the prosecutor stated, is that your understanding of what you and your attorney had plea bargained for?
THE DEFENDANT: Yes, sir.
THE COURT: Are you satisfied with it?
THE DEFENDANT: Yes, sir.
THE COURT: I’m going to accept your guilty plea. I’m going to sentence you to twenty (20) years in the Arkansas Department of Correction with five (5) years suspended, and to run concurrent with your Oklahoma sentences.
MR. STEEL: Judge, I wonder, if things don’t work out over there, and we need to get him back to serve his time in Arkansas, we’ll have him sign a Waiver of Extradition Form, would that be the proper form?
THE COURT: Yes, I think so.
MR. BARTON [Elwood’s counsel]: Your Honor, there’s no problem, however, he would like to sign an extradition to go to Oklahoma.
THE COURT: Well, I imagine they would take him over there, probably immediately.
While everyone at the hearing might have presumed that the Oklahoma authorities would take Elwood, and that he would begin serving a sentence in Oklahoma and his concurrent Arkansas sentence right away, Elwood clearly was placed on notice that it might not work out that way. The court made it clear to him that all it could do was make his Arkansas sentence concurrent with any he might thereafter serve in Oklahoma but that that did not necessarily mean Oklahoma authorities would cooperate. The Arkansas sentence was precisely in compliance with the plea bargain, and Elwood’s point that he was to serve his time in Oklahoma is without merit. His reliance on Mabry v. Johnson, 467 U.S. 504 (1984), is misplaced. There it was said, but not held, that when the prosecution breaches its promise made in exchange for the plea, the plea cannot stand. See Santobello v. New York, 404 U.S. 257 (1971). Here, the state has breached no promise.
Elwood also argues ineffective assistance of counsel and that he did not understand “the real substance of the court’s inquiry” at the plea hearing. These points were not raised at the hearing before the circuit court, thus we will not consider them. Snelgrove v. State, 292 Ark. 116, 728 S.W.2d 497 (1987); Wiser v. State, 256 Ark. 921, 511 S.W.2d 178 (1974).
Affirmed. | [
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Donald L. Corbin, Justice.
Appellant, Dan C. Edwards, appeals from an order of the Washington Circuit Court dismissing his petition for mandamus. Separate appellees, Marlene Ray and Job Serebrov, cross-appeal from the same order which also dismisses their cross-petition. We affirm the direct appeal for failure to comply with Ark. Sup. Ct. R. 9(d). We dismiss the cross-appeal as the record does not show that a notice of cross-appeal was ever filed.
The requirements of an abstract are clearly stated in Ark. Sup. Ct. R. 9 and we have interpreted those requirements time and time again in numerous opinions. See e.g., Mills v. Holland, 307 Ark. 418, 820 S.W.2d 63 (1991). As it is a practical impossibility for the seven of us to examine the single transcript that is filed with this court, Hunter v. Williams, 308 Ark. 276, 823 S.W.2d 894 (1992), it is absolutely essential that an appellant produce an abstract containing the information necessary for us to decide his or her appeal. Ark. Sup. Ct. R. 9(d) states that an appellant’s abstract should consist of “only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to this court for decision.” In D.J. v. State, 308 Ark. 37, 38, 821 S.W.2d 782, 783 (1992), we explained this particular sentence of Rule 9(d):
The word “only” is emphasized to stress that extraneous material should be omitted. However, some portions of the record are essential to an adequate understanding of the specific issues. They normally include at a minimum motions and orders relative to the argument raised.
In the present case, appellant did not include any pleadings, documents, or orders in his abstract. He merely listed the title of each pleading or document and its corresponding page number in the transcript. It seems too simple to require our stating so, but apparently we must: an abstract of appellant’s petition for mandamus and the trial court’s order dismissing his petition is necessary to our decision of the questions presented in this appeal. To decide this appeal, we must, at an absolute minimum, know what the trial court ruled before we can possibly determine any error. See Hunter, 308 Ark. 276, 823 S.W.2d 894; Logan County v. Tritt, 302 Ark. 81, 787 S.W.2d 239 (1990).
The absence of pleadings and documents is not the only deficiency in appellant’s abstract. The transcript of the hearing on appellees’ motion to dismiss the petition for mandamus is abstracted in the third person. According to Ark. Sup. Ct. R. 9(d), the hearing must be abstracted in the first person. Abstracting dialogue or testimony in the first person is much easier on both the one making the abstract and the one reading the abstract. Even if the abstract of the hearing was in the correct person, it would still be deficient because it does not supply the information necessary for deciding this case. To illustrate the deficiency in the abstract of the hearing, we quote the following paragraph of appellant’s abstract:
Response to Motion to Dismiss by Mr. Donner, counsel for Appellant Dan Edwards: Argument that action is an election contest, contesting Appellee Neuse’s qualifi cations to vote on quorum court district boundaries (T-94 and T-95).
Appellant’s abstract page 9. From the foregoing quotation, it is impossible for us to know the particular basis of appellant’s argument that appellee Neuse was disqualified. Thus, we are faced with an abstract that does not tell us anything about the arguments raised below or the trial court’s rulings thereon.
Ark. Sup. Ct. R. 9(e)(1) states that if an appellee considers an abstract to be deficient, he or she may elect to cure the deficiency by submitting a supplemental abstract. This is not a mandatory requirement. However, it is interesting to note that four of the seven briefs filed in this appeal presented the various attorneys with opportunities to supply us with a sufficient abstract, yet no such opportunity was taken.
Regardless of whether an appellee calls a deficient abstract to our attention, it is a matter we consider when the case is submitted on the merits. Ark. Sup. Ct. R. 9(e) (2). We have the option of affirming the appeal for non-compliance with Rule 9, or if we consider affirmance to be unduly harsh, we may order the parties to re-brief the case. Id. In this particular case, information about the proceedings below is sketchy at best. Based on the. extremely limited information we have before us, it appears that appellant’s claim has no merit. Therefore, we consider an affirmance for failure to comply with Rule 9 not to be unduly harsh in this case.
Appellees Ray and Serebrov add three additional points on cross-appeal. However, neither appellant’s abstract nor appellees’ supplemental abstract indicate that appellees Ray and Serebrov filed a notice of cross-appeal. Moreover, we are informed the transcript does not indicate that a notice of cross-appeal was ever filed. As appellees Ray and Serebrov seek affirmative relief and have failed to file the requisite notice of cross-appeal, we dismiss their cross-appeal. Pledger v. Illinois Tool Works, Inc., 306 Ark. 134, 812 S.W.2d 101, cert. denied, 112 S. Ct. 418 (1991); Brown v. Minor, 305 Ark. 556, 810 S.W.2d 334 (1991); Ark. R. App. P. 3(d).
Affirmed on direct appeal; dismissed on cross-appeal. | [
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Per Curiam.
Appellee’s motion for vacatur, to disqualify, and in the alternative, to appoint a special master is denied.
Holt, C.J., concurs.
Dudley, L, not participating. | [
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George Rose Smith, Justice.
In 1981 the appellee, Charlie Ward, brought this suit in the circuit court to recover possession of a 35-acre tract that had been left to him by the will of his stepmother, Melissie Ward, who died in 1967 without descendants. Her will left the property to her husband, Miles Ward, for life with remainder to Miles’s son, the appellee Charlie. Melissie’s will was never filed for probate. Nevertheless, her surviving husband remained in possession of the property until his own death in 1980. His will purported to leave the property to the appellants, defendants below, who contend in substance that despite Act 347 of 1981, Ark. Stat. Ann. § 62-2126.1 (Supp. 1981), an unprobated will is of no effect and cannot affect the title to land. Melissie’s possible revocation of her will and other disputed issues of fact have been settled by the jury’s verdict in Charlie’s favor. The key question of law is the effect of Act 347 of 1981.
The 1949 Probate Code provided, inflexibly: “No will shall be effectual for the purpose of proving title to or the right to the possession of any real or personal property disposed of by the will until it has been admitted to probate.” Ark. Stat. Ann. § 62-2126 (Repl. 1971). In 1981, however, the legislature adopted Act 347, which creates the following exception to the Code’s sweeping rejection of unprobated wills:
[Ejxcept that a duly executed and unrevoked will which has not been probated may be admitted as evidence of a devise if (1) no proceeding in Probate Court concerning the succession or administration of the estate has occurred, and (2) either the devisee or his successors and assigns possessed the property devised in accordance with the provisions of the will, or the property devised was not possessed or claimed by anyone by virtue of the decedent’s title during the time period for testacy proceedings.
The statute manifestly gives effect to a testator’s unrevoked will, though never probated, if the two specified conditions are satisfied. The appellee met all the requirements of the 1981 act by introducing a Xerox copy of Melissie’s will, and by offering proof that it had been duly executed and not revoked, that there had been no administration of the estate, and that the devisee for life had possessed the property until his death.
The appellants’ main argument, almost their sole argument, is that the court should not have permitted the plaintiff even to introduce into evidence the Xerox copy of Melissie’s will. It is argued, primarily, that the Probate Code, quoted earlier, denied any effect to an unprobated will and that Act 347 expressly declared in its second section that it did not repeal that section of the Probate code. True, but Act 347 did amend the Code, else it had no purpose. Since the appellee’s case is within the purview of the amendment, the appellants’ argument fails.
The appellants also argue, secondarily, that the Xerox copy of Melissie’s will was inadmissible under Uniform Evidence Rule 1003, Ark. Stat. Ann. § 28-1001 (Repl. 1979), which reads:
A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity or continuing effectiveness of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.
It is insisted that the original unprobated will was not of “continuing effectiveness” and therefore could not be proved by a Xerox duplicate. The short answer to this reasoning is that although the original will was no longer effective as a document eligible for probate, it was effective “as evidence of a devise” under Act 347. If that is not so, the act had no effect whatever. The duplicate is therefore admissible.
We cannot consider counsel’s argument about a requested instruction. The instruction may have been requested, but the record does not so reflect. Its inclusion in the abstract and brief was decidedly improper. BWH, Inc. v. Metropolitan Nat. Bank., 267 Ark. 182, 191, 590 S.W.2d 247 (1979); Harvey v. Castleberry, 258 Ark. 722, 529 S.W.2d 324 (1975).
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Humphreys, J.
This suit was brought in the chancery court of Lonoke 'County by appellee against appellants to foreclose a chattel mortgage upon the separate property of one of the appellants, Maggie Haymes, executed jointly by appellants to appellee to secure supplies to be furnished them while making the crop during the year 1929. It was alleged that appellants owed appellee a balance of $461.41 for supplies furnished them during said year. An itemized copy of the book account showing debits and credits was attached to the complaint.
A separate answer was filed by Maggie Haymes denying every material allegation in the complaint.
Personal service was not obtained upon J. A. Haymes, and his appearance was not entered by answer or otherwise.
The cause was submitted upon the pleadings and testimony resulting in a personal .judgment being rendered against both appellants for $296.27, together with the decree of foreclosure and order of sale of all the personal property owned by Maggie Haymes in said county which had not already been sold to satisfy same, from which is this appeal.
It appears that appellant, Maggie Haymes, and her husband executed three notes in the total sum of $700, one of which, was to appellee for $300 and two of which were to the bank for $200 each; that the money obtained on the notes executed to the bank was paid to appellee and credited on the account for supplies furnished by appellee and charged to J. A. Haymes; that appellants executed a chattel mortgage covering the crop to be raised, and all the personal property owned by Maggie Haymes in said county to secure the supplies to be furnished by appellee during the year 1929; that the debits included an item of $105.90 advanced to Charlie Sharp and the $3 advanced to him in cash, which made a total of $108.90; that Charlie Sharp' turned his crop over to J. A. Haymes who assumed the payment of advances made by appellee to Sharp and directed that the amount be transferred and charged to his book account covering advances which had been made under the chattel mortgage; that J. A. Haymes took a car belonging to his wife, Maggie Haymes, and left the country and that Maggie Haymes thereupon turned the crops and personal property covered by the mortgage over to appellee for the purpose of selling same and applying the proceeds thereof to the account for supplies furnished by appellee.
The main contention of appellant for a reversal of the judgment and decree is that Maggie Haymes’ liability under the mortgage was limited to the face of the notes and interest. In other words, that her individual property covered by the mortgage could not be subjected to the payment of supplies sold and charged to her husband in excess of the face value of the notes and interest thereon. The notes were given as estimates only of the amount of supplies to be furnished. The language of the mortgage was broader and covered the value of all supplies to be furnished by appellee to appellants during the year 1929. ■ The language of the mortgage, however, was not broad enough to include supplies furnished and charged to a third party who thereafter sold his crop to J. A. Haymes. Under no construction of the language used in the mortgage can an intention be imputed to Maggie Haymes to pledge her individual property to se cure advances made by appellee to one who might thereafter sell his crop to J. A. Haymes. The court erred, therefore, in holding that the mortgage secured advances made by appellee to 'Charlie 'Sharp in the sum of $108.90.
Appellant Maggie Haymes also contends that the court erred in rendering a personal judgment against her for the balance of the account which was charged on the books to her husband, J. A. Haymes, in excess of $700, the amount of the notes. Her liability under the terms of the mortgage is not limited to the face of the notes. ’The language of the mortgage secured the payment of all supplies furnished to both Mr. and Mrs. Haymes during the year 1929 for the purpose of making the crop. Mrs. Haymes testified, in addition to the language used in the mortgage which binds her, that she gave the mortgage to cover Arthur’s (her husband) account for supplies which were to be furnished them during the year 1929. It was her account as well as her husband’s, although charged against her husband, and it was proper to render a personal judgment against her for the balance eliminating the item advanced to Charlie Sharp.
It was improper, however, to render a personal judgment against J. A. Haymes who had not been personally served.
Appellant, Maggie Haymes, also contends for a reversal of the judgment and decree because same was based upon a report of a master filed in vacation without being accorded a hearing thereon. It is argued that a master was appointed to state the account and the cause continued, and that during vacation he filed a report upon which the judgment and decree were rendered and dated back as if same had been rendered in term time. We have examined the record, and are unable to find where any master was appointed or that he filed a report or that the judgment and decree were based upon such report. The judgment and decree recite that it was rendered on the 7th day of March, 1930, during term time, upon the pleadings and testimony adduced at the trial, and there is nothing in-the record showing that these recitals are not true.
The judgment and decree are therefore modified so as to conform to this opinion, and, as modified, are affirmed. | [
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John A. Fogleman, Justice.
Appellant Hoggard & Sons Enterprises, Inc., operator of a funeral home in Piggott, brought one action against appellee Russell Burial Association, also of Piggott, and another against appellee Irby Burial Association of Rector, seeking to recover the face value of burial contracts or membership certificates issued by the two burial associations. Insofar as the case now stands, the first suit involves a certificate covering W.C. Maude Edwards and the second one cover ing George Lewis Clark. Personal representatives of the two estates later joined Hoggard & Sons as parties plaintiff, after each of the defendants demurred, alleging a defect of parties, and are appellants here.
It is alleged in the complaints that Hoggard & Sons furnished services and materials for funerals for Edwards and Clark, but that the two Burial Associations have refused to pay Hoggard & Sons the face amount of the contracts. After each of the respective personal representatives had become a party plaintiff, each of the defendants filed a demurrer. Russell Burial Association asserted the complaint and amended complaint showed that the court had no jurisdiction of the subject of the action and that there was a defect of parties plaintiff, and prayed that the complaint be dismissed. Irby Burial Association asserted the complaint did not state facts that show the court had jurisdiction and that there was a defect of parties plaintiff in that Hoggard & Sons was not a proper party plaintiff, asking that the complaint be dismissed for these reasons. Plaintiffs in each case filed a response to the demurrers. The two cases were consolidated for hearing on these demurrers. The trial court’s order on the demurrers recites that they were submitted upon the briefs in support of the demurrers, the responses to the demurrers and briefs in support thereof and evidence introduced into the record. It also recites that the defendants, as a part of their demurrers, had pleaded that the plaintiffs had not exhausted their administrative remedies before the Arkansas Burial Insurance Board.
The record also reveals that the plaintiffs introduced into the record of this hearing answers by the defendants to interrogatories propounded by plaintiffs and the exhibits to these answers, and the defendants introduced plaintiffs’ answers to interrogatories propounded by the respective defendants. Upon this record the court sustained both demurrers on the ground that the plaintiffs had not exhausted their administrative remedies.
This record certainly made the appellees’ pleadings speaking demurrers and extended the court’s consideration far beyond a review of the face of the pleadings. A demurrer which sets up a ground dehors the record or which, to be sustained, requires reference to facts not appearing upon the face of the pleading is a speaking demurrer. Rider v. McElroy, 194 Ark. 1106, 110 S.W. 2d 492. A demurrer is proper when a defect appears upon the face of a complaint. Ark. Stat. Ann. § 27-1115 (Repl. 1962). Otherwise, such defects ordinarily are to be raised by answer. Ark. Stat. Ann. § 27-1119 (Repl. 1962). See Isgrig v. City of Little Rock, 225 Ark. 297, 280 S.W. 2d 891. Speaking demurrers are not to be considered, and it is erroneous for a trial court in passing upon a demurrer to decide a disputed question of fact or determine a mixed question of law and fact, since a demurrer properly raises only questions of law. Isgrig v. City of Little Rock, supra; Dodson v. Abercrombie, 218 Ark. 50, 234 S.W. 2d 30; Lawhon v. American Cyanamid & Chemical Co., 216 Ark. 23, 223 S.W. 2d 806. However, we have recognized motions to dismiss a complaint for want of jurisdiction when the lack thereof does not appear upon the face of the complaint. See, e.g., Arkansas Land & Cattle Co. v. Anderson-Tully Co., 248 Ark. 495, 452 S.W. 2d 632; Running v. Southwest Freight Lines, Inc., 227 Ark. 839, 303 S.W. 2d 578; May v. May, 221 Ark. 585, 254 S.W. 2d 95.
The trial court sustained the demurrers but did not specifically dismiss either complaint. We have been perplexed about the question of appealability of the court’s order. Ordinarily, the sustaining of a demurrer to a complaint is not an appealable order, but a subsequent judgment dismissing the complaint, if the plaintiff elects to stand thereon, is appealable. Rider v. McElroy, supra. But, in reversing the action of a circuit court, we have held that a demurrer alleging that the court did not have jurisdiction because of the pendency of a prior chancery court action, wherein the same parties and the same subject matter were involved, should have been treated as a motion to dismiss, when viewed in the light of the evidence introduced in support of the pleading. Askew v. Murdock Acceptance Corporation, 225 Ark. 68, 279 S.W. 2d 557. We said that the character and sufficiency of a pleading is to be determined, not by what it is called by the pleader but, by the facts which it sets up. The circuit judge must have heeded this admonition. His finding that the circuit court had no jurisdiction because plaintiffs had not exhausted their administrative remedies was tantamount to a dismissal. This result seems inevitable when we view the Administrative Procedures Act. Ark. Stat. Ann. §§ 5-701 — 714 (Supp. 1971). The parties could have judicial review, after the Arkansas Burial Association Board has acted, by filing a new petition which might be in Pulaski County rather than Clay County. Ark. Stat. Ann. § 5-705. For these reasons we deem the order appealable, as it would effectively terminate the present action in the Circuit Court of Clay County.
In answering interrogatories, Gardner McNabb, Secretary-Treasurer of Russell Burial Association, stated that the certificate issued by the association named no beneficiary, but provided for payment for merchandise and services furnished by a mortician chosen by the Secretary-Treasurer of the Association for the benefit of the deceased member covered. The sample certificate exhibited contained the following clause:
The failure of those in charge to comply with the rules and by laws as herein set forth shall forfeit the deceased member’s right to the benefits of the association.
According to McNabb, the by-laws appeared on the certificate itself. The certificate also revealed that the association would deliver a casket and conduct a funeral at a distance up to 50 miles from Piggott without extra charge, but if the member died at a place over 50 miles from Piggott an extra fee would be charged or a casket would be sent by express. There was also a provision on the face of the certificate that a deceased member’s right to benefits would be forfeited upon failure of “those in charge” to notify the Secretary-Treasurer or Russell Mortuary of a member’s death, until after his burial. The same persons constitute all the officers of both the association and the mortuary. McNabb stated that benefits under the certificate are usually paid to Russell Mortuary, unless the burial was outside the association’s service area, in which event, they are paid to the "contracting” funeral home. The service area is determined by the Arkansas Burial Association Board, according to McNabb. He said the only request for payment on account of the Edwards funeral was made by Hoggard & Sons Enterprises, Inc., after her burial.
According to plaintiff Hoggard’s answers to interrogatories, Lester Edwards contracted with it for Mrs. Edwards’ funeral, but the Hoggard funeral home was not designated by any officer of Russell Burial Association as the "contracting” funeral home. The total bill submitted to the Edwards family was for $1,058.70, with credit of $500 for "Russell Burial Association” allowance, pursuant to agreement with Lester Edwards. The Hoggard company advertises that it will honor all burial certificates.
The answers of Dan McBride, Secretary-Treasurer of Irby Burial Association, are of a similar tenor. They differed with respect to notice of death. McBride said he received notice from a member of the Clark family that a representative of plaintiff Hoggard was en route to Memphis to obtain the body of Clark and return it to Rector for burial, and was informed by an agent of plaintiff Hoggard that it would handle the burial services. He said he advised Hoggard that Irby Funeral Home was ready, willing and able to perform the service and offered to furnish the merchandise for use in the burial. Plaintiff Hoggard’s answers to Irby Funeral Home’s interrogatories were similar to those given in the other case, except that it was admitted that Hoggard & Sons Enterprises, Inc., proceeded to bury Clark after having been advised that Irby Funeral Home was the “designated” funeral home.
Appellants’ response to the Russell demurrer alleged, among other things, that the Arkansas Burial Association Board had “affirmed” the action taken in this case by the Russell Burial Association, and that § 66-1823 of Arkansas Statutes is illegal and unconstitutional.
There is no question about the status of the Arkansas Burial Assocition Board as an administrative agency under Ark. Stat. Ann. §§ 66-1801 — 1824 (Repl. 1956), or that its duly authorized rules and regulations have the force and effect of statutes. Ark. Stat. Ann. § 66-1823. Ap-pellees’ attack upon the court’s jurisdiction was mounted upon the provisions of Ark. Stat. Ann. § 66-1824, and that section apparently afforded the basis of the circuit court's ruling. That section empowers the board to determine issues between different burial associations and between burial associations and their respective members and to render binding decisions, subject to appeal.
We need not reach appellants’ arguments that this section of the act is unconstitutional because we agree with appellants’ argument that the trial court did have jurisdiction. Hoggard 8c Sons Enterprises, Inc., is not a burial association. The issues between it and the two burial associations are not “issues between different Burial Associations.” The respective personal representatives are not, at least in their representative capacities, members of either association, so there is no issue “between Burial Associations and their respective members” involved in the present litigation. Any construction which placed jurisdiction of all assertions of accrued liability on burial insurance certificates in the exclusive original jurisdiction of the board would extend the act far beyond the intent apparent from a reading of the act and would require careful evaluation of its constitutionality. It is appropriate that an administrative agency regulate this business and pass judgment upon internal disputes as well as disputes between two organizations engaged in that business. For example, the reasonableness of rules, by-laws and regulations of an association and of any changes made in them is certainly a proper field for the utilization of special competence of the board. Elections of officers will sometimes produce internal conflict. These are examples of the issues we feel were contemplated by the passage of this section. We find no intention on the part of the General Assembly, however, to substitute this board tor the courts in determining contractual liabilities, such as are asserted here. The principal technical questions involved here are questions of law, the determination of which is more appropriately addressed to the courts rather than to any administrative agency.
Since the issues are not within the jurisdiction of the Arkansas Burial Association Board, the order of the circuit court is reversed and the cause remanded.
A superficial reading of the opinions in Askew and in Isgrig might lead to a conclusion that there is an inconsistency in these holdings. This is resolved by the fact that in Askew the evidence offeied was an important factor in changing the character of the pleading, while in Isgrig the demurring party actually relied upon its pleading as a classic demurrer, and there is no indication that any evidence was offered in its support. | [
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Donald L. Corbin, Justice.
This appeal involves the interpretation of our underinsured motorist statute. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 29(1 )(c). Larry Don Mason, appellee, was injured in the course and scope of his employment with Killoren Company of Arkansas, Inc. (Killoren) on June 1, 1989. Appellee was driving a 1986 one ton truck owned by his employer when a pickup truck driven by Ricky Beneaux crossed the center line and hit appellee’s vehicle head on. The parties to this action have stipulated that Ricky Beneaux was solely at fault for the accident and appellee suffered personal injuries equal to or in excess of Fifty Thousand Dollars ($50,000). Ricky Beneaux’s insurance company settled with appellee for the full amount of Mr. Beneaux’s policy, Twenty-Five Thousand Dollars ($25,000). Appellant, American Casualty Company of Reading, Pennsylvania (American Casualty), was Killoren’s insurer at the time of the accident. Appellee demanded payment from appellant of the maximum underinsured motorist coverage included in Killoren’s policy of Twenty-Five Thousand Dollars ($25,000). Appellant rejected the demand and appellee filed suit. The trial court held that under Ark. 335 of 1987 codified at Ark. Code Ann. § 23-89-209 (Supp. 1989) appellee was entitled to recover the Twenty-Five Thousand Dollars ($25,000) underinsured motorist coverage provided by appellant. Appellant’s sole point on appeal is that the trial court erred in interpreting Act 335 as allowing appellee to recover under its underinsured motorist coverage.
Appellant claims Act 335 is an unambiguous “difference of limits” or “excess” statute which was fundamentally changed by Act 209 of 1991 to an “add-on” statute. Under the “difference of limits” or “excess” method of computation of benefits, “an insured is not entitled to underinsured motorist benefits when the responsible party’s liability insurance limit equals or exceeds the amount of the insured’s underinsured coverage.” Henderson v. Universal Underwriters Ins. Co., 768 F. Supp. 688, 690 (E.D. Ark. 1991) (citations omitted). Appellee contends Act 335 was intended to be an “add-on” statute from the start and that the legislator’s intent is evidenced by the emergency clause contained in Act 209. Under the “add-on” method of computation of benefits, “an insured [can] receive the limits of his underinsured motorist coverage over and above any recovery from the responsible party if that recovery is not adequate to fully compensate the insured.” Id.
Act 335 of 1987 as codified at Ark. Code Ann. § 23-89-209 provided in pertinent part:
Every insurer writing automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicles in this state, shall make underinsured motorist coverage available to the named insured, which coverage enables the insured or the insured’s legal representative to recover from the insurer the amount of damages for bodily injury or death to which the insured is legally entitled from the owner or operator of another motor vehicle. Coverage limits shall be equal to the limits of liability provided by the underinsured motorist coverage to the extent the coverage exceeds the limits of the bodily injury coverage carried by the owner or operator of the other motor vehicle.
Act 209 of 1991, which was titled “AN ACT to Amend Arkansas Code 23-89-209 to Clarify the Law Pertaining to Underinsured Motorist Coverage; and for Other Purposes,” provided in pertinent part:
Subsection (a) of Arkansas Code 23-89-209 is hereby amended to read as follows:
“(a) Every insurer writing automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicles in this state shall provide underinsured motorist coverage to the named insured unless rejected in writing by the insured. The coverage shall enable the insured or the insured’s legal representative to recover from the insurer the amount of damages for bodily injury or death to which the insured is legally entitled from the owner or operator of another motor vehicle. Underinsured motorist coverage shall be at least equal to the limits prescribed for bodily injury or death under Arkansas Code 27-19-605. Coverage of the insured pursuant to underinsured motorist coverage shall not be reduced by the tortfeasor’s insurance coverage except to the extent that the injured party would receive compensation in excess of his damages.”
The emergency clause of Act 209 provided:
It is hereby found and determined by the General Assembly that the present underinsured motorist insur anee coverage law is being misinterpreted; that under the present misinterpretation persons covered by underinsured motorist coverage may not receive the benefits intended by the law; and that this act clarifies the law and should therefore go into effect immediately in order to resolve the misinterpretation as soon as possible. Therefore an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.
At dispute is the last sentence of Section 1 of Act 335 of 1987 codified at Ark. Code Ann. 23-89-209(a), which reads: “Coverage limits shall be equal to the limits of liability provided by the underinsured motorist coverage to the extent the coverage exceeds the limits of the bodily injury coverage carried by the owner or operator of the other motor vehicle.” Appellant claims the last sentence of Act 335 is unambiguous and thus we should apply the plain meaning rule to determine that Act 335 is a “difference of limits” statute. Therefore, since the policy limit of the tortfeasor was equal to the amount of the underinsured motorist coverage, appellant is not liable to appellee for payment of any amount for underinsured motorist coverage. Appellee contends the last sentence of Act 335 clearly provides that an insured is entitled to recover underinsured motorist coverage benefits for damages sustained which exceed the coverage of the tortfeasor disregarding the amount of the tortfeasor’s liability insurance. Although we have not specifically addressed this issue previously, in Shelter Mutual Ins. Co. v. Bough, 310 Ark. 21, 834 S.W.2d 637 (1992), where the issue was whether appellant had made underinsured motorist coverage available to appellee in compliance with the statute, we indicated the amount of the tortfeasor’s coverage had no effect on appellee’s recovery under underinsured motorist coverage except that appellee could not be reimbursed twice for the same damages. The United States District Court for the Eastern District of Arkansas addressed this very issue and decided Act 335 of 1987 was intended to be an “add-on” statute. Henderson, 768 F. Supp. 688.
The basic rule of statutory construction to which all other interpretive guides must yield is to give effect to the intent of the legislature. Roy v. Farmers & Merchants Ins. Co., 307 Ark. 213, 819 S.W.2d 2 (1991). Where the language of a statute is plain and unambiguous, we determine legislative intent from the plain meaning of the language used and we do not resort to a search for legislative intent. Id. “However, when the statute is ambiguous, we must give effect to the intent of the legislature in adopting the statute.” McGee v. Amorel Public Schools, 309 Ark. 59, 63, 827 S.W.2d 137, 139 (1992) (citation omitted). While each party feels the statute is clear and supports their, position when given its plain meaning, we feel Act 335 of 1987 is ambiguous and can be read to support either interpretation. We must, therefore, look elsewhere to discern the intent of the legislature. Changes to statutes made by subsequent amendments may be helpful in determining legislative intent. Nixon v. H & CElec. Co., 307 Ark. 154, 818 S. W.2d 251(1991). While we cannot clearly determine from the language of the statute whether the legislature intended underinsured motorist coverage to be provided in a “difference of limits” or “add-on” method, the changes made to section 23-89-209(a) by Act 209 of 1991, the title of Act 209, and the emergency clause of Act 209, clearly indicate the legislature intended underinsured motorist benefits under Act 335 of 1987 to be provided without regard to the amount of insurance carried by any liable party. Section 23-89-209(a) was amended a second time by Section 22 of Act 1123 of 1991, but the amendments made by Act 209 of 1991 were not affected. Therefore, we think the trial court correctly determined appellee was entitled to recover underinsured motorist coverage from appellant.
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David Newbern, Justice.
This appeal must be dismissed for failure of the appellant to comply with the Arkansas Rules of Appellate Procedure.
The appellant, Kenneth R. Matthews, sued the appellee, Louis Arthur Dodrill, alleging tort and contract causes of action. The court directed a verdict in favor of Dodrill on Matthews’ claim that Dodrill owed him wages. The other claims were tried to a jury which returned a verdict for Dodrill.
Matthews filed a notice of appeal which did not comply with Ark. R. App. P. 3(e). It did not designate the contents of the record on appeal or that the whole record would constitute the record on appeal, and it did not contain a statement that the transcript, or specific portions thereof had been ordered by the appellant.
Dodrill has not filed a brief in response to that filed by Matthews but has moved to dismiss the appeal on the ground that the failure to designate the record on appeal has deprived him of the opportunity to designate portions of the record which may be missing and which would be necessary in support of his position. He is correct in pointing out that it is the responsibility of the appellant, as provided in Rule 3(e), to designate the record.
The appellant stated four points of appeal in his notice of appeal. Only two of them are specific enough to be understandable or to serve as notice of claimed errors. His brief lists six points of appeal, some of which clearly are not included in the points stated in the notice of appeal.
Under these circumstances, we must agree that the notice of appeal was so defective that Dodrill could not be expected to know whether the entire record would be before the court and, if not, which portions he could expect. All things considered, the notice of appeal was inadequate and prejudicial to Dodrill. See Jones v. Adcock, 233 Ark. 247, 343 S.W.2d 779 (1961); Arkansas Farmers Assn. v. Towns, 232 Ark. 997, 342 S.W.2d 83 (1961).
Appeal dismissed. | [
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Frank Holt, Justice.
The appellant was driving an automobile when it collided head on with another vehicle, killing a passenger and seriously injuring the driver of that car. The appellant was convicted by a jury of manslaughter (Ark. Stat. Ann. § 41-1504 [Repl. 1977]) and battery in the first degree. (Ark. Stat. Ann. § 41-1601 (1) (c) [Repl. 1977]). He was sentenced to five years on each offense with the sentences to run consecutively. The appeal was certified to this court pursuant to Rule 29 (1) (c) of the Rules of the Supreme Court, because it involves the construction of an act of the General Assembly and rules governing criminal trials in circuit court.
The appellant relies upon two points for reversal, neither of which has merit. First, he contends that the trial court erred in denying his motion for mistrial. Two days before the trial the appellant moved in limine to prevent the state from introducing evidence of or making any reference to his seven prior convictions for driving while intoxicated. The trial court granted the motion. During his opening statements to the jury, appellant’s counsel stated that there would be testimony that the appellant had consumed only a small amount of alcohol on the day of the collision; that the collision occurred because he momentarily took his eyes off the road when he reached down to pick up a radio or cassette player that had fallen from the dash to the floor of his car; when he looked up he was at the scene of impact; and when he hit his brakes, they grabbed, causing him to veer to the left into the path of the victims’ car. Later in the trial, after several of the state’s witnesses had testified as to the high rate of speed of appellant’s car and his intoxicated condition, the trial court announced that if the appellant’s proof developed as was outlined in the opening statement, which indicated that the collision was a “pure accident”, it would change its in limine ruling and, if appellant testified, permit cross-examination under Rule 404 (b) about his previous DWI convictions. The appellant then moved for a mistrial, which the court denied.
We first note that appellant’s trial preceded our ruling in State v. Vowell, 276 Ark. 258, 634 S.W.2d 118(1982), where we held that it was not error to allow the state to cross-examine, pursuant to Ark. Stat. Ann. § 28-1001, Rule 404 (b) (Repl. 1979), an almost identically situated defendant with respect to his prior DWI convictions. The issue here is whether the trial court committed reversible error in changing his in limine ruling during the trial. The only prejudice claimed by the appellant is that his attorney, in reliance upon the court’s in limine ruling, told the jury in his opening statement what it could expect to hear from the appellant at trial. Because of the court’s reversal of his in limine ruling, the appellant exercised his right not to testify and thus was precluded from producing the evidence that the jury was told it would hear. Therefore, he claims he was entitled to a mistrial.
We now examine the in limine oral motion. The state took the position that the seven previous DWI convictions were relevant and admissible evidence on cross-examination. Appellant’s counsel took the position that the appellant did not deny that he was drinking and that his defense would be that he was not drunk and that it was a “pure accident”. In urging the court to grant his motion to disallow any reference to his previous convictions, appellant’s counsel stated:
.... [T]he mere fact that he is DWI doesn’t necessarily mean that caused the accident. See, he might have been hit from behind and pushed into somebody, you know. There are a lot of different fact situations. What I am saying is, what if he hadn’t had a drop to drink in this case?
In effect, counsel was arguing to the court that the accident could be merely the result of negligence or some cause other than intoxication.
We have held that a motion in limine, a threshold motion, should be precise and definite as to the subject matter sought to be prohibited. Further, whenever it is somewhat broad, it results in confusion and is necessarily subject to a later judgment and interpretation by the court. Smith v. State, 273 Ark. 47, 616 S.W.2d 14 (1981); and Ark. State Hwy. Comm’n v. Pulaski Inv. Co., 272 Ark. 389, 614 S.W.2d 675 (1981). Here, in our view, the court, after hearing testimony bearing on the cause of the accident, committed no prejudicial error when he altered his in limine order and advised the appellant that if he testified he was subject to cross-examination with respect to his previous DWI convic tions. It is not uncommon for an attorney to outline in an opening statement, as here, “what we anticipate the testimony is going to be” and then, in view of developments in the trial, decide not to produce that evidence. We do not reverse for nonprejudicial errors. State v. Vowell, supra; Brown v. State, 262 Ark. 298, 556 S.W.2d 418 (1977). No prejudicial error is demonstrated here. Additionally, a mistrial is within the sound discretion of the trial court, and the decision will not be reversed unless there is a clear showing of abuse. Robinson v. State, 275 Ark. 473, 631 S.W.2d 294 (1982). Here, we cannot say that the trial court abused his discretion.
The appellant next contends that the evidence was insufficient to sustain a conviction of battery in the first degree. He does not contest the sufficiency of the evidence with respect to the manslaughter conviction. His argument is that the conviction for manslaughter requires only a finding that he was guilty of “reckless” conduct, as § 41-1504 provides, but that battery in the first degree requires an intent to inflict serious physical injury. He cites Bolden v. State, 267 Ark. 504, 593 S.W.2d 156 (1980); and Golden v. State, 265 Ark. 99, 576 S.W.2d 955 (1979). In both of those cases the state’s argument was that the defendant had purposefully beaten another person. § 41-1601 (1) (a). The relevant subsection of the battery statute invoked here is § 41-1601 (1) (c), which provides thata person commits battery in the first degree if “he causes serious physical injury to another person under circumstances manifesting extreme indifference to the value of human life ....” In any event, either subsection of § 41-1601 (1) requires a more culpable mental state than recklessness. See Ark. Stat. Ann. § 41-203 (Repl. 1977). However, the mere fact that the jury convicted the appellant of manslaughter, which requires proof of reckless conduct, does not require a conclusion that the jury could not also have found him guilty of first degree battery, with respect to the survivor of the collision, an offense that requires a more culpable mental state.
In State v. Vowell, supra, we held that the phrase “under circumstances manifesting extreme indifference to the value of human life” is in “the nature of a culpable mental state .... and therefore akin to ‘intent’.” Further, prior DWI convictions were admissible on cross-examination pursuant to Rule 404 (b) of the Uniform Rules of Evidence ‘‘to prove the warning quality of the other conviction and to infer that the [defendant] must have arrived at a mental state inconsistent with mistake and consistent with the culpable mental state of causing serious physical injury ‘under circumstances manifesting extreme indifference to the value of human life’.” Compare Holder v. Fraser, Judge, 215 Ark. 67, 219 S.W.2d 625 (1949), where we said:
Whether particular conduct is cautious or reckless depends upon its attendant circumstances. To drive a car at sixty miles an hour may demonstrate extreme caution upon a race-track and yet may be almost as culpable as murder if done in a crowded city street. Here petitioner is charged with driving recklessly, willfully and wantonly in such circumstances that three people were killed. It is stated that he was under the influence of intoxicants at the time. On the basis of these allegations we must treat petitioner’s conduct as being equivalent to a conscious and deliberate disregard for the safety of others. Such behavior borders so closely upon that motivated by actual intent that we have no hesitancy in saying that the same reasoning is applicable. Petitioner risked a violation of the statute as to each person whose life he imperiled and may be held separately responsible for each death proximately resulting from the prohibited conduct.
Here, there was evidence that appellant was driving at a high rate of speed on the wrong side of the road in an intoxicated condition when he collided head on with another vehicle, killing one person and seriously injuring another. The vehicle he struck traveled backward 65 feet from the point of impact and his vehicle continued forward 49 feet. The evidence, when viewed most favorably to the appellee, as we must do on appeal, is amply substantial to support the jury’s finding that the appellant caused serious physical injury to another person under circumstances manifesting extreme indifference to the value of human life.
Affirmed.
Hickman and Purtle, JJ., dissent. | [
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Steele Hays, Justice.
The single issue presented by this appeal is whether a reference in the testator’s will to a power of appointment was sufficient to exercise a power of appointment in a trust instrument.
Helen Fay Henes, deceased, executed a will in 1979 containing the following residuary clause:
I give, devise and bequeath all of the remainder and residue of my estate together with property to which I may have a power of appointment at the time of my death, to the trustee hereinafter named, to be held in trust for the uses. . . . [Emphasis added.]
In 1982, the Motes/Henes trust was established for Helen Fay Henes and her sister, Elizabeth Henes Motes, in which was placed approximately $6,000,000 from interests the sisters had redeemed from their ownership in certain businesses. The trust contained the following provision:
This trust shall terminate with respect to the separate trust share of each grantor [the two sisters] upon the death of said grantor. Upon such termination, the remaining assets of said separate trust shall be paid to such person or persons or trusts as grantor may, by specific reference hereto, appoint in her Last Will and Testament. [Emphasis added.]
Helen Fay Henes died in April 1983 and in February 1988 the trustee of the Motes/Henes trust petitioned for the consolidation of the probate and chancery proceedings and for construction of the power of appointment in the will. Consolidation was granted and following a hearing the trial court held that the language of the will was sufficient to exercise the power of appointment defined in the trust. The trustee and Elizabeth Henes Motes have appealed. Respondent-Appellees are the children of Elizabeth Henes Motes.
The question is: When a power of appointment requires a specific reference to it, as does the trust in this case, will a general reference in the will be sufficient to exercise the power requiring specific reference?
The general rule is defined in Restatement (Second) of Property, Donative Transfers (1986):
§ 17.1 Significance of Donee’s Intent to Appoint.
In order for a donee to exercise a power effectively it must be established —
(1) That the donee intended to exercise it; and
(2) That the expression of the intention complies with the requirements of exercise imposed by the donor and by rules of law.
The problem here concerns the second requirement and the question we must decide is whether Ms. Henes’ will provision, making reference to “property to which I may have a power of appointment at the time of my death,” is sufficient to exercise the power of appointment in the trust, or does the law require that she must have made reference to the trust instrument itself.
Finding no cases of our own on this topic, we have turned to other sources for guidance. The Reporter’s Note to section 17.1 of the Restatement is primarily devoted to the problem in our case. While the Restatement discusses cases it classifies as “supporting” the rule and those “contrary” to the rule, a closer examina tion of those cases reveals that the division would be more aptly placed between those cases that construe the “specific reference” requirement literally, and those that favor a flexible interpretation, focusing more on the intent of the donee. See also Annotation 15 A.L.R. 4th 810 (1982), supra, which distinguishes the cases between those that require specific reference and those that do not.
Our research does not produce a clear majority or trend on either side of the question. We prefer the approach focusing on the intent of the donor, however, as we regard it as the better reasoned view. It is also in keeping with our general approach to the interpretation of wills, which has as its paramount principle that the intention of the testator will govern, as well as the rule that wills should be liberally construed. Copeland v. Hames, 238 Ark. 143, 379 S.W.2d 1 (1964); Cross v. Manning, 211 Ark. 803, 202 S.W.2d 584 (1947). And in Moore v. Avery, 146 Ark. 193, 225 S.W. 599 (1920), in construing a will, we held that the phrase, “all my property,” was sufficient to refer to and exercise a power of appointment. While Moore does not involve a “specific reference” requirement, it nevertheless reflects the more liberal approach. See generally, Annotation 15 A.L.R.3d 346 (1967).
In Roberts v. Northern Trust Co., 550 F. Supp. 729 (N.D. Ill. 1982), the court was faced with the same issue and reviewed Illinois law to determine the correct approach. The court found that in a significant power of appointment case, the Illinois court had drawn on three basic principles of will construction: 1) that the intent of the testator controls and courts should construe wills to give effect to that intention; 2) a devise or bequest should not be voided because of errors in describing the subject matter as long as enough remains to show the testator’s intent; and 3) the court will use its equitable powers to correct technical defects in a will in order to effect the testator’s intent. From those general rules the court fashioned the following test for the “specific reference” problem:
Where the evidence of intent is powerful, the question of compliance should be examined in a light which favors fulfillment of both the donor’s desire for assurance and the donee’s intent. Where, however, evidence of the donee’s intent is weak, a liberal construction of the condition of specific reference may well defeat the limitations of both donor and donee.
Following the approach in Roberts, supra, we find the evidence of intent in this case is very strong and therefore have no problem with a more liberal construction of the “specific reference” requirement. The evidence of Fay Flenes’s intent came from the testimony of John L. Johnson, who was the attorney for both sisters. He had drafted the wills for both, and had also drafted the trust agreement. He testified that at the time of drafting the will he had discussed with Ms. Henes how she wanted to dispose of her property and she told him she wanted her sister to be benefitted and the property to go to her nieces and nephews, her sister’s children. The will was drafted to effectuate that intent, giving her sister a life estate through the trust, for her enjoyment during her lifetime, with the property ultimately going to the nieces and nephews.
When Johnson drafted the trust agreement he reviewed Ms. Henes’s will and decided there was no need to make any changes in it. He noted that the provision in the will on the power of appointment would operate to exercise all powers of appointment that Ms. Henes would have, to pass the property under a trust arrangement that was set up under her will. Johnson stated that this was absolutely consistent with his view and understanding of Ms. Henes’ intent.
Johnson further commented that in drafting the trust, which was irrevocable, he wanted to avoid placing Ms. Henes in the position of being unable to change the beneficiaries of her estate by naming them in the trust instrument. By not putting final testamentary disposition provisions in the trust, it retained for Ms. Henes the ability at any point to change her mind as to the disposition of her estate.
The trial court noted that another significant factor was the problem of estate taxes. If the power was not exercised by the will, double taxation would result, and the trial judge observed that people do not intend tax consequences of that nature-. We'agree.
Appellant urges that we must ascertain the intent of the testator at the time of the execution of the will, citing Moore, supra. That is true, but it does not mean that we eliminate after-acquired property from being disposed by way of a will executed previously. See, e.g., Brock v. Turner, 147 Ark. 421, 227 S.W. 597 (1921); Fowler v. Hogue, 276 Ark. 416, 635 S.W.2d 274 (1982). We held in Brock, supra, that when a will manifests the purpose to dispose of all the estate the testator might have at the time of death, it includes after-acquired property. In that case while there were other reinforcing considerations, the court looked primarily at the language of the will which included, “all ... my property,” and the phrase, “also all chattel, property of any kind, including money on hand,” the court emphasizing the phrase “on hand” as referring to the time of death. This is also the rule specifically as it relates to powers of appointment. Restatement (Second) of Property, Donative Transfers, § 17.6 (1986).
In this case, Ms. Henes’ will refers first to, “a// of the remainder and residue of my estate,” and then specifically refers to “property to which / may have a power of appointment at the time of my death.” It seems clear that the testator’s intent at the time of execution was to include any after-acquired property.
AFFIRMED.
Other cases favoring the “intent” approach include: Roberts v. Northern Trust Co., 550 F. Supp. 729 (N.D. Ill. 1982); Cross v. Cross, 559 S.W.2d 196 (Mo. App. 1977); First Union National Bank v. Moss, 32 N.C. App. 499, 233 S.E.2d 99 (1977); McKelvy v. Terry, 370 Mass. 328, 346 N.E.2d 912 (1976). | [
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Steele Hays, Justice.
By this appeal we are again asked to decide whether a factual basis for a plea of guilty was established in the trial court.
In January 1984 appellant pled guilty to being a felon in possession of a firearm, and, as an habitual offender, to having committed an aggravated robbery. The plea was tendered as part of a plea agreement for a sentence of twenty years with five years suspended for aggravated robbery and a concurrent sentence of five years for possession of a firearm. At the close of the plea hearing, the circuit judge accepted the pleas and imposed the sentence proposed by the plea agreement.
On June 18, 1986, appellant filed a motion to withdraw the guilty pleas pursuant to A.R.Cr.P. Rule 26. The trial court treated the motion as a petition for post-conviction relief under Rule 37 and scheduled an evidentiary hearing on the petition. At the conclusion of the hearing the circuit judge denied the petition and appellant has appealed on two assignments of error: one, at the plea hearing the trial court failed to establish a factual basis for the pleas and, two, appellant received ineffective assistance of counsel in that his attorney failed to investigate appellant’s defenses, failed to file pretrial motions and but for these errors appellant would not have pled guilty. We reject the arguments and affirm the denial of the petition.
The state does not take issue with the appellant’s contention that no factual basis was established at the plea hearing, rather, it argues that a factual basis for the guilty pleas was shown at the post-conviction hearing, which under our cases remedies any deficiency which may have existed at the plea hearing. Snelgrove v. State, 292 Ark. 116, 728 S.W.2d 497 (1987); Branham v. State, 292 Ark. 355, 730 S.W.2d 226 (1987); Muck v. State, 292 Ark. 310, 730 S.W.2d 214 (1987); Treadwell v. State, 271 Ark. 823, 610 S.W.2d 884 (1981); Davis v. State, 267 Ark. 507, 592 S.W.2d 118 (1980). While we might well dispose of the issue on that basis, we prefer to deal with the plea hearing, as we believe our cases have resulted in some confusion as to the proper method of conducting a plea hearing under A.R.Cr.P. Rules 24.4, .5 and .6.
There are three phases to the entry of a guilty plea: first, under Rule 24.4 the trial judge must address the accused personally and determine that he understands the nature of the charge, the mandatory minimum sentence, if any, the possible maximum sentence, the effect prior convictions or additional charges could have on the sentence, and that by pleading guilty or nolo contendere, the accused waives the right to a jury trial and to be confronted with the witnesses (except where the death penalty is sought).
Secondly, Rule 24.5 requires the trial judge to determine that the plea is voluntary, whether the plea is the result of a plea agreement and, if so, that the provisions of the plea agreement be stated. Under Rule 24.5 the trial judge must also address the accused personally and determine whether any force, threats or promises, other than the plea agreement, induced the guilty plea.
The third phase of the plea hearing has to do with establishing a factual basis for the plea. A factual basis requires the existence of sufficient evidence from which a judge may fairly conclude that a defendant could be convicted if he chose to stand trial. American Bar Association, Standards For Criminal Justice, No. 14-1.6. A factual basis is most commonly established by inquiry of the accused, of the prosecutor and an examination of the presentence report. W. LaFave and J. Israel, Criminal Procedure § 20.4(f) (1984). Rule 24.6 provides that the trial judge will not accept a plea of guilty or nolo contendere “without making such inquiry as will establish that there is a factual basis for the plea.” Significantly, Rule 24.6, unlike Rule 24.4 and Rule 24.5, contains no requirement that the accused be addressed personally by the trial judge in determining the factual basis for a guilty plea. By separating this step in the procedure from those steps which must be addressed directly to the accused, the framers of the rules did not contemplate that only the accused could establish a factual basis for a plea of guilty or nolo contendere. Indeed, as the Commentary to Rule 24.6 observes, the existence of a factual basis is “a legal conclusion.” The evident purpose of the factual basis requirement is to prevent an accused from unwittingly pleading guilty on the mistaken assumption that his conduct was unlawful when in fact it was not. See American Bar Association, Standards for Criminal Justice, No. 14-1.6(a) (Commentary). Since our criminal rules were patterned and adopted from those standards, it seems clear that the rules contemplate that a factual basis may be established either by addressing the accused, defense counsel, the prosecutor, or all three.
Appellant relies primarily on McDaniel v. State, 288 Ark. 629, 708 S.W.2d 613 (1986), where we stated that a factual basis can be established only by addressing the accused personally. It may well be that the decision in McDaniel turned on the fact that these rules were considered as one, and the dictates of A.R.Cr.P. Rule 24.4 were largely ignored at McDaniel’s plea hearing. However, in spite of language to the contrary in McDaniel, in establishing the factual basis of a defendant’s charge and plea, there is no single method by which the requirement of Rule 24.6 can be achieved. Clearly, we have no rule that the factual basis for a defendant’s plea must be furnished only by the defendant. We have held that the court must ask the defendant if he did the things of which he stands accused and is pleading guilty because he is guilty. Smith v. State, 291 Ark. 496, 725 S.W.2d 849 (1987). However, in Smith the Rule 24.6 requirement was met by the prosecutor reciting the underlying facts of the crimes with which the defendant was charged, and the appellant admitting his guilt. Here, the court recounted the charges and bases of the crimes in the presence of the defendant, defense counsel and prosecutor and the defendant acknowledged his guilt and described unlawful conduct both orally and by signing his plea agreement. Defendant’s counsel also confirmed in open court and in the presence of the defendant, the truthfulness of the factual basis recited by the court. That, we believe, entirely suffices.
With that attempted clarification, we turn to the proceedings at the appellant’s plea hearing. Major excerpts from the plea hearing follow, with significant portions underlined:
THE COURT:
Are you William Henry Fuhr?
MR. FUHR:
Yes, sir.
THE COURT:
Are you represented by Mr. Fred Hart of the Public Defender’s Office, your court-appointed attorney?
MR. FUHR:
Yes, sir.
THE COURT:
You are charged in Case No. 83-203 with the offense of felon in possession of a firearm, a Class “D” Felony, and being a habitual criminal, that on the 19th day of March 1983, you did unlawfully and feloniously possess a firearm, a .38 caliber Colt revolver, after having been convicted of a felony. Count II, that you having been previously convicted of three or more felonies on the day of the commission of the above charged felony, are subject to an extended period of imprisonment in accordance with Ark. Stat. Ann. Section 41-1001. Do you understand the charge of felon in possession of a firearm?
MR. FUHR:
Yes, sir.
THE COURT:
Do you understand that habitual criminal is a way of enhancing that penalty in that case, increasing it, do you understand that?
MR. FUHR:
Yes, sir.
THE COURT:
In Case No. 83-204, you are charged with the offense of aggravated robbery, a Class “Y” Felony and habitual criminal, that on the 10th day of March 1983, you did unlawfully and feloniously threaten to immediately employ physical forcé upon Fletcher Singleton for the purpose of committing a theft and did so while armed with a deadly weapon, to wit: a pistol. Count II: that you, having been previously convicted of three or more felonies on the day of the commission of the above charged felony, are subject to an extended period of imprisonment in accordance with Ark. Stat. Ann. Section 41-1001. Do you understand the aggravated robbery charge and the habitual criminal would enhance that penalty, do you understand that?
MR. FUHR:
Yes, sir.
THE COURT:
Aggravated robbery, a Class “Y” Felony, carries from ten to forty years or life imprisonment, do you understand that?
MR. FUHR:
Yes.
THE COURT:
Possession of a firearm, a Class “D” Felony, carries up to six years in the Department of Correction and up to a Ten Thousand Dollar fine or both, do you understand that?
MR. FUHR:
Yes.
THE COURT:
Mr. Saxon, what does habitual criminal do to the aggravated robbery, as far as possible penalty?
MR. SAXON:
It increases the minimum.
MR. HART:
(Appellant’s attorney): It is twenty to sixty to life, Your Honor.
THE COURT:
Do you understand that? (T. 53-54)
MR. FUHR:
Yes, sir.
THE COURT:
What does it do to the felon in possession of firearm, up to thirteen years?
MR. HART:
Six to twelve, Your Honor.
THE COURT:
Do you understand that you are subject to six to twelve years in the Department of Correction if the habitual criminal is involved and up to a ten thousand dollar fine? Do you understand that those could be made consecutive, that is, added together, instead of being made concurrent, do you understand all that?
MR. FUHR:
Yes, sir.
THE COURT:
So we have twenty to sixty or life and from six to twelve and a ten thousand dollar fine, do you understand that?
MR. FUHR:
Yes, sir.
THE COURT:
Mr. Hart, do you think he understands both the possible penalties and the charges?
MR. HART:
Yes, Your Honor. (T. 55)
THE COURT:
I show you two documents here Mr. Fuhr, a plea statement of guilty and statement of the Court respecting a partial suspension of sentence, did you read and understand these two documents?
MR. FUHR:
Yes, sir.
THE COURT:
Any questions about them?
MR. FUHR:
No, sir.
THE COURT:
Did you sign them?
MR. FUHR:
Yes.
THE COURT:
Mr. Hart, do you think he understood these two documents?
MR. HART:
Yes, Your Honor.
THE COURT:
Mr. Fuhr, how do you plead to aggravated robbery with habitual criminal, how do you plead?
MR. FUHR:
Guilty.
THE COURT:
Felon in possession of a firearm with habitual criminal?
MR. FUHR:
Guilty.
THE COURT:
Do you understand that if you plead guilty that you waive your right to a jury trial on each charge?
MR. FUHR:
Yes, sir. (T. 55-56)
THE COURT:
That you waive your right to be confronted with the witnesses against you and to testify or not testify in your own behalf on each charge?
MR. FUHR:
Yes, sir.
THE COURT:
Do you understand that you give up your right to appeal any sentence I might give you to the Arkansas appellate courts?
MR. FUHR:
Yes, sir.
THE COURT:
Is your plea of guilty based on a plea agreement?
MR. FUHR:
Yes, sir.
THE COURT:
What is your agreement?
MR. FUHR:
A sentence of twenty years with five years suspended?
THE COURT:
Twenty with five suspended on the aggravated robbery charge?
MR. HART:
Yes, that is correct.
THE COURT:
And how much on the felon in possession of a firearm?
MR. FUHR:
Five years. (T. 56-57)
THE COURT:
Is it your understanding they are to be concurrent?
MR. FUHR:
Yes, sir.
THE COURT:
Mr. Fuhr, do you understand that the Court does not have to go along with this agreement if it does not want to?
MR. FUHR:
Yes, sir.
THE COURT:
Were any force, threats or promises used against you to get you to enter this plea of guilty?
MR. FUHR:
No, sir.
THE COURT:
You were set for trial Monday morning and it is late Friday afternoon, almost 5:30 in the afternoon, are you sure you want to do this?
MR. FUHR:
Yes, sir.
THE COURT:
You want to waive your Constitutional rights to a jury trial and all your other Constitutional rights, is that correct?
MR. FUHR:
Yes.
THE COURT:
Mr. Hart, is there a factual basis for the plea in both cases?
MR. HART:
Yes, Your Honor, there is. (T. 58)
THE COURT:
Mr. Saxon?
MR. SAXON:
Yes, Your Honor, there is.
THE COURT:
Mr. Fuhr, based on your plea of guilty, based on the fact that the informations do state the criminal offenses of aggravated robbery and felon in possession of a firearm, and since you have admitted that you are an habitual criminal, the Court can and does hereby find you guilty of aggravated robbery, a Class “Y” Felony, of felon in possession of a firearm, a Class “D” Felony, I will ask you if you have any legal reason why sentence should not be pronounced at this time?
MR. FUHR:
No, sir.
The plea agreement, signed by Mr. Furr and by Mr. Hart, contained the following representation from defense counsel:
I have carefully gone over this paper with the accused. To the best of my judgment he is fully able to understand all of it and, further, his plea ofguilty is consistent with the facts he has related to me and my own investigation of the case. (Our emphasis).
Thus the trial court followed Rules 24.4, .5 and .6 exactly as provided and accepted the plea agreement by imposing precisely the sentences Mr. Furr hoped to receive. Not only did Mr. Furr receive what appears to be a favorable sentence, given his history, he got the benefit of the dismissal of several other pending charges. We reject the argument that a factual basis was not established and hold that the trial court complied with Rules 24.4, .5 and .6.
We need not dwell at length on the remaining issue — ineffective assistance of counsel. A petitioner seeking relief under Rule 37 assumes a difficult burden where ineffective assistance is alleged, that is, the petitioner must show, one, that counsel’s representation fell below an objective standard of reasonableness and, two, that there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would be different. Strickland v. Washington, 466 U.S. 668 (1984).
The Strickland standard has been made applicable to challenges of guilty pleas based on ineffective assistance of counsel in Hill v. Lockhart, 474 U.S. 52 (1982), and Jones v. State, 288 Ark. 375, 705 S.W.2d 874 (1986). In order to satisfy the second element of the Strickland test, Hill requires that the appellant show that he would not have pled guilty and would have insisted on a trial.
Where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error “prejudiced” the defendant by causing him to plead guilty rather than go to trial will depend upon the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction of whether the evidence likely would have changed the outcome of a trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985).
In the case before us appellant alleges that counsel: 1) failed to fully investigate all available defenses, 2) failed to question certain witnesses, 3) failed to file pre-trial motions, 4) failed to confer with appellant often enough, and 5) was inexperienced. However, appellant fails to specify what new evidence or matter further investigation would have uncovered to change his plea, or how additional pre-trial motions could have produced a different result. The allegations are wholly conclusory and will not, therefore, sustain a claim of ineffective assistance of counsel. Ross v. State, 292 Ark. 663, 732 S.W.2d 143 (1987); Pride v. State, 285 Ark. 89, 684 S.W.2d 819 (1985). Nor will general assertions that counsel did not meet with the defendant often enough, or did not aggressively prepare for trial be sufficient. See Travis v. Lockhart, 787 F.2d 409 (8th Cir. 1986), Houston v. Housewright, 678 F.2d 757 (8th Cir. 1982), cert. denied, 459 U.S. 993 (1982).
AFFIRMED.
Purtle, J., Dudley, J., and Newbern, J., dissent.
The record uses Fuhr, but it appears the correct spelling is Furr. | [
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Carleton Harris, Chief Justice.
According to appellant’s statement of the case, on November 17, 1970, in the Holly Island Community, a few miles from Rector, an automobile occupied by four men was seen entering and leaving the driveways of several homes, and a resident of the community approached the car and, observing sev eral items in the back seat, inquired as to their business. After an argument, the men left and the Clay County Sheriff’s Office was notified. About ten minutes later, Deputy Sheriff Liddell Jones, who had received the earlier call, received another from a resident of the community stating that several items of property were missing from his home. The Dunklin County Police Department (Kennett, Missouri) was sent a general description of the car, make, model, license number, and number of persons occupying the vehicle, and about thirty minutes later, the police located an automobile fitting the description parked at a grocery store in Kennett, the occupants, including appellant, at the time eating sandwiches. All four were arrested and the car was driven by an officer to the county courthouse. Deputy Jones from Clay County arrived about twenty minutes later, and with a member of the Missouri State Police, conducted a warrantless search of the car. Several items of personal property later established as stolen property were found on the front and back seat, and other items were found in the trunk after a search was made while the car was parked at the courthouse. Thereafter, the Prosecuting Attorney of the Second Circuit in Arkansas charged Richard Easley, appellant herein, with burglary and grand larceny of the property of Birtlee Statler (who had advised Deputy Sheriff Jones of the missing items), unlawful possession of that stolen property, along with grand larceny and unlawful possession of property allegedly belonging to Charles Grimes. A bench warrant was issued and Easley was extradited from the State of Missouri, pleaded not guilty, and was tried before a jury. He was found guilty on all four counts and was sentenced to a term of ten years in the Arkansas State Department of Correction. On September 17, 1972, appellant filed a motion for relief under Criminal Procedure Rule 1, and several amendments were subsequently added. The Clay County Circuit Court, on the basis of the record in the case, denied relief to the petitioner, and from such denial appellant brings this appeal. Seven alleged errors are asserted, though not all are here argued, and it is admitted that some are of doubtful merit.
The principal asserted error is that there was no probable cause to warrant a search of the Easley automobile. Prior to trial, the court heard, in chambers, a motion filed on behalf of appellant to suppress the evidence obtained during the search, and this motion was denied. It is contended by appellant that the court erred in finding that probable cause existed for the search, but even if there was probable cause at that time, the warrantless search of the car at the station was improper and illegal. As to probable cause, the Missouri officers had been notified by Clay County Deputy Sheriff Jones of the burglary, a description of the automobile, including the license number, and information concerning certain items of stolen property. Some of these items were visible in the back seat and back floorboard. Certainly, there was probable cause for believing that the occupants of the car had committed a felony and appellant recognizes that the case of Carroll v. United States, 267 U.S. 132 stands for jthe proposition that an officer can search a motor vehicle without a warrant if probable cause exists to believe the vehicle contains that which by law is subject to seizure. Appellant states, however, that if “exigent” circumstances existed at the time of the arrest (while the car was parked at the grocery store), such “exigency” justifying a warrant-less search ceased after the men were there arrested and the car driven to the courthouse. Accordingly, the search conducted at the latter location, says appellant, could only have been authorized by obtaining a proper search warrant.
We do not agree. In Cox v. State, 254 Ark. 1, 491 S.W. 2d 802, decided on March 12 of this year, the facts were similar, and the identical arguments were made. In that case, there was a comprehensive discussion of federal cases relating to search of automobiles and seizure of evidence therein and we pointed out that Coolidge v. New Hampshire, 403 U.S. 443, 29 L. Ed. 2d 564, a case relied upon by appellant in the present litigation, was not controlling, but rather that the key case was Chambers v. Maroney, 399 U.S. 42, 26 L. Ed. 2d 419 (1970), and we quoted from Chambers as follows:
“ ‘In terms of the circumstances justifying a warrant-less search, the Court has long distinguished between an automobile and a home or office. In Carroll v. United States, 267 U.S. 132 (1925), the issue was the admissibility in evidence of contraband liquor seized in a warrantless search of a car on the highway. After surveying the law from the time of the adoption of the Fourth Amendment onward, the Court held that automobiles and other conveyances may be searched without a warrant in circumstances that would not justify the search without a warrant of a house or an office, provided that there is probable cause to believe that the car contains articles that the officers are entitled to seize.’ ”
The court held that where the police are justified in stopping and searching an automobile as in Carroll, they may also seize and search it later at the police station. The court, in Coolidge v. New Hampshire, supra, did hold as unconstitutional a warrantless police station search of an automobile under circumstances very dissimilar to those in Chambers, but pointed out continuing approval of Chambers by stating:
“There is no suggestion that, on the night in question, the car was being used for any illegal purpose, and it was regularly parked in the driveway of his house. The opportunity for search was thus hardly ‘fleeting.’ The objects that the police are assumed to have had probable cause to search for in the car were neither stolen nor contraband nor dangerous. (403 U.S. at 460).
“Since Carroll would not have justified a warrantless search of the Pontiac at the time Coolidge was arrested, the later search at the station house was plainly illegal, at least so far as the automobile exception is concerned. Chambers, supra, is of no help to the State, since that case held only that, where the police may stop ‘and search an automobile under Carroll, they may also seize it and search it later at the police station (403 U.S. at 463).
“It is true that the actual search of the automobile in Chambers was made at the police station many hours after the car had been stopped on the highway, when the car was no longer movable, any ‘exigent circumstances’ had passed, and, for all the record shows, there was a magistrate easily available. Nonetheless, the analogy to this case is misleading. The rationale of Chambers is that given a justified initial intrusion, there is little difference between a search on the open highway and a later search at the station. Here, we deal with the prior question of whether the initial intrusion is justified. For this purpose, it seems abundantly clear that there is a significant constitutional difference between stopping, seizing, and searching a car on the open highway, and entering private property to seize and search an unoccupied, parked vehicle not then being used for any illegal purpose.”
In Chambers, as mentioned in Cox v. State, supra, a warrandess search of an automobile was made after the car had been taken to a police station, but the court noted that it could have been searched on the spot where it was stopped since there was probable cause to search, and it was a fleeting target for a search. The court added that the probable cause factor was still in existence at the station house and that in terms of practical consequences, there was little to choose between an immediate search without a warrant, and immobilizing the car until a warrant was obtained. “Given probable cause to search, either course is reasonable under the Fourth Amendment.” See also the recent case (January 2, 1973) of Gomez v. Beto, 471 F. 2d 774, decided by the United States Court of Appeals for the Fifth Circuit. Appellant’s argument is without merit.
Point II is covered by our previous discussion.
Point III sets out that the petitioner was arrested without a warrant and was not advised of his rights, but that point is not argued. We have already made clear that the arrest was justified without a warrant and the testimony reflects that appellant was advised of his rights.
Point IV refers to Easley’s allegation in his petition “That petitioner’s attorney did not defend his client to the fullness of his ability” and “petitioner’s attorney did in fact state that he wouldn’t go any further for lack of money.” Before discussing this point, it might be stated that it appears that Easley did not actually desire a new hearing before the trial court. On November 2, 1972, appellant addressed a letter to the circuit judge, complying with the court’s request that he be more spe cific in his allegations of inadequate representation by counsel. Easley closed the letter by saying:
“Petitioner asked the court that in view of the fact that Petitioners Constitutional Rights have been violated that the court act on Petitioners original motion on amendments to that motion. Petitioner asked that if the court can not make a decision on evidence already given [our emphasis] that the court allow Petitioner to move his (Petitioners) motion on to the higher courts in the Arkansas State Supreme Courts.”
Easley had two retained attorneys and upon the trial court’s direction to be more specific asserted that on the day of trial one of these attorneys was sick and unable to attend and he (Easley) asked the other attorney to endeavor to get the case postponed. This was not done and Easley also asserted that the attorney who was ill had other witnesses to present to the court. Of course, the allegation that the attorney stated he “wouldn’t go any further for lack of money” is rather puzzling since appellant was represented by this retained attorney throughout the trial, and the statement apparently has reference to an appeal to this court, since the appeal on the denial of relief under the Rule 1 Petition was brought to this court by appointed counsel. Of course, the names of other witnesses could have been furnished to counsel by appellant himself, and there is no allegation that the names of witnesses were given to counsel trying the case, and the attorney refused to call them. Frequently, attorneys do not call all the witnesses whose names they have, either because they do not feel the testimony would add anything to the defense, or because they think the witnesses would make a bad impression. Let it be remembered that this is no attack upon court-appointed counsel, but an attack upon Easley’s own retained counsel, who incidentally has practiced law in that area for many years. It has been frequently said that “Effective assistance does not equate with success.” See Mitchell v. Stephens, 353 F. 2d 129, and cases cited therein. The evidence against Easley, as shown by testimony in the hearing to suppress, was rather overwhelming, and the failure to obtain an acquittal certainly does not denote incompetence. In Poole v. United States of America, 438 F. 2d 325 (1971), Poole appealed from an order denying without hearing his motion to vacate sentence. It was alleged that he was denied the Sixth Amendment right for assistance to counsel in that his court-appointed counsel failed to subpoena one Richard Curtis Apgar, also a co-defendant, to testify and it was asserted that the district court erred in denying him a full evidentiary hearing. The United States Court of Appeals, Eighth Circuit, in an opinion by Chief District Judge McManus, held the contention to be without merit though Apgar had signed an affidavit supporting Poole’s allegation that he (Poole) had been forced by Apgar to commit the robbery. The court stated:
“There is a presumption of the competency of court appointed counsel. Slawek v. United States, 413 F. 2d 957 (8th Cir. 1969). A charge of inadequate representation can prevail ‘only if it can be said that what was or was not done by the defendant’s attorney for his client made the proceedings a farce and a mockery of justice, shocking to the conscience of the Court. Hanger v. United States, 428 F. 2d 746, 748 (8th Cir. 1970).’
“The calling or not calling of witnesses is a matter normally within the realm of the judgment of counsel. [Citing cases]. We hold that the requirement of the Sixth Amendment has been met here since Appellant’s counsel’s judgment not to call Richard Curtis Apgar neither made a mockery of justice, nor shocks the conscience of the Court.
“The District Court did not err in denying the Appellant a full and fair evidentiary hearing since we feel that an ‘examination of the motion and the records and files of the case conclusively shows a hearing would serve no useful purpose.’ Cardarella v. United States, 375 F. 2d 222, 230 (8th Cir. 1967).
‘If a movant under Section 2255 makes no allegations of ineffectiveness or incompetence of counsel, save in matters normally within the realm of counsel’s judgment, he is not entitled to a hearing. Mitchell, supra, 259 F. 2d at 794.’ ”
Previous discussion has covered Point V, though the point is simply stated, and no argument advanced.
Point VI asserts that the “commitment papers are not in order”, but the point is not argued and the sentence appears to be in accord with the verdict.
Finally, is it asserted that the petition should have been passed upon by a different judge rather than the same judge who presided at the trial; that this was “inherently prejudicial and a denial of due process of law”. Appellant recognizes that we have held this contention to be without merit, but insists that we should reconsider that ruling. In Meyers v. State, 252 Ark. 367, 479 S.W. 2d 238 (1972), we said:
“We have recognized the need for a different presiding judge when the one who originally heard the case is biased or, for want of a record of the first hearing, must appear as a witness. Elser v. State, 243 Ark. 34, 418 S.W. 2d 389 (1967); Orman v. Bishop, 243 Ark. 609, 420 S.W. 2d 908 (1967). In the case at hand, however, the petitioner asserts no factual basis for his insistence that the assignment of a new judge is constitutionally mandatory. We find nothing in the record to suggest that Judge Enfield was disqualified from acting upon the postconviction petition. To the contrary, he appears to have treated the petitioner with courtesy and fairness in every particular. The present contention is therefore without merit.”
There is no suggestion of prejudice in the petition filed by appellant, nor is there any indication from the record that such prejudice existed. We hold the allegation to be without merit.
Affirmed.
Fogleman, J., not participating.
A second sentence of ten years was to be suspended upon restitution and good behavior.
There was also testimony that Easley consented to the search of the automobile. | [
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Darrell Hickman, Justice.
This is an automobile accident case. The appellant was seriously injured when his car collided with a truck driven by the appellee, Donald Hamilton, who was a dealer for Snap-On Tools Corporation. The jury found the appellant 90% negligent and Hamilton 10% negligent. Snap-On Tools had been dismissed as a party on a motion for summary judgment.
Oxford appeals, raising four issues. Finding his arguments meritless, we affirm the jury’s verdict.
Immediately after the accident, Oxford was taken to the emergency room. A blood alcohol test was ordered by the attending physician, and it showed the alcohol content in Oxford’s blood to be .174. The first issue is whether .the test result should have been introduced into evidence at trial. Oxford claims it was a privileged communication between him and his doctor and therefore inadmissible under A.R.E. Rule 503.
Had this case arisen before the adoption of the Uniform Rules of Evidence, undoubtedly the test results would have been excluded. The physician/patient privilege was governed by Ark. Stat. Ann. § 28-607 (1947). Under that law, any information acquired from a patient while a doctor or nurse attended him and any information necessary to enable the doctor or the nurse to prescribe or do any act for the patient as a surgeon or trained nurse was protected.
Based on that statute, we held in Ragsdale v. State, 245 Ark. 296, 432 S.W.2d 11 (1968), that when a blood alcohol test was ordered by a physician, the result of the test was inadmissible. In Freeman v. State, 258 Ark. 617, 527 S.W.2d 909 (1975), a doctor’s testimony regarding the removal of a bullet from Freeman’s abdomen was held inadmissible. The Freeman opinion made it clear that the privilege protected information gained by means other than direct communication with the patient.
But these two cases are no longer the law. The enactment of the Uniform Rules of Evidence in 1976 significantly changed Arkansas law regarding physician/patient privilege, and we so held in Baker v. State, 276 Ark. 193, 637 S.W.2d 252 (1982). In that case, Baker sought treatment for gonorrhea and claimed the fact that he had been so treated was privileged.
We originally held that the fact Baker had been tested was privileged, but we changed our mind on rehearing. In a substituted opinion we recognized the law had been changed:
The legislature made a significant change by adopting a more sensible rule and on rehearing we recognize that change. The rule not only applies to criminal cases but civil as well.
While the former law protected “any information,” the new rule granted the privilege only to confidential communications. We held that “the real protection is aimed at preventing a doctor from repeating what a patient told him in confidence.” Justice Purtle recognized in his dissent that we do not interpret the rule to protect a physician’s “description of the injuries or ailments or disease.”
The court of appeals relied on our decision in Baker in Barker v. State, 21 Ark. App. 56, 728 S.W.2d 204 (1987). Barker had testified that he was attacked first by the man he killed. A physician was allowed to testify that he examined Barker and found no serious injuries or abrasions on him. More recently in Bussard v. State, 295 Ark. 72, 747 S.W.2d 71 (1988), we reaffirmed our interpretation of Rule 503. The appellant had been taken to the hospital for treatment of a gunshot wound. The bullet taken from his body was matched with a gun found at the scene of the crime. The appellant’s doctor was allowed to testify about removing the bullet.
We hold that the result of the blood test was not a confidential communication and was properly admitted into evidence. There are courts which would reach a different result. See State v. Pitchford, 10 Kan. App. 293, 697 P.2d 896 (1985); In re M.P.C., 165 N.J. Super. 131, 397 A.2d 1092 (1979). But we have made it clear how we interpret Rule 503 and leading authorities on evidence would agree with our interpretation. See E. Cleary, McCormick on Evidence § 105, at 258-60 (3d ed. 1984); 8 J. Wigmore, Evidence in Trials at Common Law § 2380a, at 828-32 (McNaughton Rev. 1961).
The second issue concerns the introduction of medical records which reflected Oxford’s history of heavy drinking and alcoholism. The objection was that the evidence was irrelevant or at least more prejudicial than probative.
This was a civil suit in which Oxford sued for damages for future pain and suffering, loss of future earnings, and loss of earning capacity. The jury was instructed that, in computing the appellant’s life expectancy, it could consider the mortality table “in connection with other evidence relating to the probable life expectancy of [the appellant], including evidence of his occupation, health habits, and other activities.” See AMI 2218. Two doctors testified that alcohol could shorten one’s life expectancy due to the damage it causes to various body organs.
The trial court has discretion in determining the relevance of evidence and in gauging its probative value against unfair prejudice. Simpson v. Hurt, 294 Ark. 41, 740 S.W.2d 618 (1987). Given the fact that evidence of the appellant’s habits was useful and even necessary to assist the jury in determining his life expectancy, we find no abuse of discretion. See Pearce v. Fletcher, 74 N.C. App. 543, 328 S.W.2d 889 (1985).
The appellant’s third argument is that the court should have granted a mistrial when defense counsel remarked in the opening statement that one of his witnesses had been threatened. A mistrial is a drastic remedy only to be granted when no other remedy exists, and the trial court has wide discretion dealing with a motion for a mistrial. Jim Halsey Co. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985). Only one mention was made of the alleged threat, and the trial judge gave a cautionary instruction. The trial judge was in the best position to determine the effect of the remark on the jury.
Finally, the appellant claims it was error to grant summary judgment in favor of Snap-On Tools. The appellant alleged that the appellee Hamilton was acting as an agent, servant and employee of Snap-On when the accident occurred. Since the jury determined Hamilton was not liable in the accident, there was no liability to impute to Snap-On, even if it had remained in the lawsuit. Since we are affirming the jury’s verdict, we do not address this issue.
Affirmed.
The appellant’s reliance on Mosley v. State, 22 Ark. App. 29, 732 S.W.2d 861 (1987), is misplaced. That case did not involve thephysician/patient privilege. It involved the Hospital Records Act, Ark. Code Ann. § 16-46-301 to 308 (1987).
It is also alleged there was error in permitting evidence of Oxford’s purchase of alcoholic beverages on other occasions to be introduced. The record does not reflect any mention of this evidence at trial. | [
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